LIBRARY 


s*^- 

•  V^F«"Tr'y4  *"v 

' 


THE  NEW  PROCEDURE 

—  IN- 

CRDIINAL  AND  DISCIPLINARY  CAUSES 


--  OF- 


ECCLESIASTICS 


TJ  :&T  1  11  E  3D 


Or   a   dear  and  full  explanation  of  the  Instruction    "  Cum  Magnopere," 

issued  Try  the  8,  Congr.  de  Prop.  Fide,  in  1884,  for  the 

United  States, 


REV.    S.     B.    SMITH,    D.  D... 

FORMERLY   PROFESSOR  OF  CANON  LAW,   AUTHOR  OF    "  NOTES,  ''    "  ELEMENTS  OF 
ECCLESIASTICAL  LAW,"   "  COUNTER  POINTS,  "  ETC. 


Second  Edition,  Revised  and  Enlarged. 

FR.  PUSTET, 
PRINTER  TO  THE  HOLT  SEE,  AND  THE  S.  CONGREGATION  OF  RITES. 

FR.  PUSTET  &  CO., 

XEW  YORK  AND  CINCINNATI. 
1888. 


H.    GABRIELS,    S.   T.   D. 

Censor  Deputatus. 


%  m  p  r  i  m  a  t  u  r . 

iii  MICHAEL  AUGUSTINUS, 

Archiepiscopus  Neo-Eboracensis. 


DATUM  NKO-EBORACI, 

DIE  23  MARTII,  1887. 


COPYHIGIIT,    1887. 

E.   STEISBACK. 


Letter  from  Card.  Simeoni. 


S.  CONGREGATIONS  DI  PROPAGANDA,  SEGRETARIA. 


KEY.  SIGNORE  . 

Ho  ricevuto  il  nuovo  libto  cla  Lei 
teste  dato  alia  luce,  intorno  alia 
procedure  legale  delle  cause  criminali 
contro  gli  Ecclcsiastici.  Ringrazio 
scntitamente  la  S.  V.  del  cortese 
pensiero  d'  avermene  inviata  una 
copia.  Desiderava  leggere  il  suo 
lavoro,  ma  fino  ad  ora  le  mie  occupa- 
zioni  me  lo  hanno  impedito.  Se  avro 
qualche  ritagliodi  tempo  disponibile, 
non  manchero  di  esaminarlo.  Intan- 
to  esprimo  alia  S.  V.  la  fiducia  che 
questo  suo  scritto  abbia  a  riuscire 
niolto  utile  al  clero  degli  Stati  Uniti. 

Prego  poi  il  Signcre  che  la  conceda 
ogni  bene. 

Di  V.  S. 

Affmo. 

GIOVANNI,  CARD.  SIMEOXI,  Prefetto. 
Pro  Segrctario, 

ZEFIRINO  ZITELLT,  Min., 

Rev.  D.  Scbastiano  B.  Smith,  D.  D., 

Rettore  della  chiesa  di  S.  Guisseppe, 

Diocesi  di  Newark. 


ROMA,  li  7  Agosto  1887. 

REV.  SIR: 

I    have    received    the   new   book 
recently   published  by   jou,  relative 
\  to   the    legal  procedure    in  criminal 
;  causes  of  ecclesiastics.     I  thank  you 
j  very  sincerely  for  your  courtesy  in 
'  sending  me  a  copy.      I  wished  to 
read    your    Vork,    but,    up    to  the 
present,    my   occupations  have  hin- 
dered me  from  so  doing.     If  I  have 
:  any  spare  moments,  I  shall  not  fail  to 
examine  it.    Meanwhile  I  assure  you 
that  I  trust  that  this,  your  book,  -will 
be  very  useful  to  the  clergy  of  the 
United  States. 

I  pray  the  Lord  to  grant  you  every 
blessing. 

Yours,  most  affectionately, 

JOHN  CARD.  SIMEONI,  Prefect. 

For  the  Secretary. 
ZEPHYRINO  ZEFELLI,  Minutante, 
To  Rev.  S.  B.  SMITH,  D.  D., 

Rector  of  St.  Joseph's  Church, 

Diocese  of  Newark. 


iv  Testimonials. 

Letter  from  Card.  Gibbons. 


CARDINAL'S  RESIDENCE,  408  N.  CHAKLKS  ST. 

Baltimore,  June  13,  1887. 
REV.  DEAR  SIR: 

I  have  to  thank  you  for  the  copy  of  the  New  Procedure,  which  you  wore 
kind  enough  to  send  me. 

The  Imprimatur  of  his  Grace  of  New  York,  the  letter  of  Father  Gabriels, 
as  well  as  your  merited  reputation  for  learning  and  patient  research,  lead  me 
to  hope  that  your  commentary  will  be  read  with  profit  and  interest  by  the 
Bishops  and  Clergy  of  the  country.  A  decision  has  recently  emanated  from 
the  Propaganda  which  throws  some  light  on  one  of  the  points  treated  in 
your  work. 

Faithfully  yours  in  Christ, 

J.  CARD.  GIBBONS, 

ArMp.  of  Bait. 
Rev.  S.  B.  Smith,  D.  D. 


Letter  from  Card.  Mazella. 


ROMA,  July  5,  1887. 
Rev.  S.  B.  Smith,  D.  D., 

Paterson,  N.  J. 
REV.  'AND  DEAR  SIR  : 

I  thank  you  very  cordially  for  the  copy  of  the  Xeio  Procedure,  which 
you  had  the  goodness  to  send  me,  and  my  thanks  are  due  also  to  the  kind 
words  with  which  it  was  accompanied. 

Your  labor,  I  trust,  will  be  productive  of  lasting  good;  it  is  Undoubtedly 
of  very  much  practical  utility,  and  I  hope  that  God  may  grant  you  many 
years  of  usefulness  to  continue  the  good  work  begun  so  favorably. 
Thanking  you  once  more  for  your  kindness,  I  remain, 

Your  Servant  in  Christ, 

C.  CARD.  MAZET>LA. 


TESTIMONIAL. 


Letter  of  the    Very  Rev.  Dr.    Gabriels,  President  of  the^Provin- 
clal  Seminary,   Troy,  JV.    Y. 


ST.    JOSEPH'S   PROVINCIAL   SEMINAKT, 

Troy,  N.  Y.,  March  4,  1887. 

DEAR  DOCTOR  : — I  have  carefully  read  your  Treatise  on  the  Instruction 
Cum  Magnopere,  which  is  now  in  force  in  most  of  our  dioceses  as  the  rule 
for  criminal  and  disciplinary  trials  of  Clerics,  and  after  the  few  changes 
you  told  me  you  would  make  in  the  work  will  have  been  introduced,  I  feel 
safe  in  saying  that  your  dissertation  will  be  a  inost  useful,  xwactical  guide  for 
all  persons  connected  with  said  trials.  Your  doctrine  strikes  me  as  truly 
orthodox  and  sincerely  loyal  to  all  the  degrees  of  ecclesiastical  authority, 
and  it  is  at  the  same  time  proposed  in  the  methodical  order,  and  the  clear 
language  which  are  so  desirable,  but  not  always  found,  in  books  on  Canon 
Law. 

I  remain 

sincerely  yours  in  J.  C. 

H.  GABRIELS. 
REV.  S.  B.  SMITH,  D.  D. 


PREFACE. 


The  Instruction  Cum  Magnopere  of  the  S.  C.  de  Prop. 
Fide  supersedes  the  Instruction  of  the  same  Congregation, 
dated  July  20,  1878,  and  forms  the  present  law  for  £he 
United  States.  Its  main  features  were  discussed  at  the 
conferences  held  in  Rome,  between  the  Cardinals  of  the 
Propaganda  and  our  Archbishops,  during  the  month  of 
November,  1883.  After  these  conferences,  it  was  promul- 
gated as  a  law  of  the  Holy  See,  and  sent  to  the  Third 
Plenary  Council  of  Baltimore,  held  in  November  1884.  It 
is  now  obligatory  all  over  the  country,  excepting  in  a 
few  dioceses,  where  by  Papal  dispensation,  the  Instruction 
of  1878  is  allowed  to  remain  in  force,  until  the  curia  can  be 
properly  established. 

The  Instruction  Cum  Magnopere  which  we  explain  in  this 
treatise,  is  almost  an  exact  copy  or  transcript  of  the  In- 
struction of  the  S.  C.  EE.  et.  RR.  issued  on  June  n,  1880. 
These  two  documents  differ  only  in  a  few  points.  These 
differences  are  explained  in  the  present  work.  Hence  it 
may  be  said  that  our  judicial  procedure  is  now  the  same  as 
that  which  exists  in  Catholic  countries  where  the  Canon 
law  obtains. 


vi  Preface. 

The  present  Instruction  Cum  Magnopere  prescribes  the 
manner  in  which  our  Prelates  are  bound  to  proceed  when 
they  are  about  to  impose  preventive  or  repressive  reme- 
dies or  punishments.  Preventive  measures  are  extrajudicial 
or  paternal  remedies,  and  therefore  must  be  preceded  by  an 
extrajudicial  investigation.  Repressive  remedies  are  pun- 
ishments proper,  and  consequently  must  be  preceded  by  a 
judicial  inquiry.  The  object  of  the  inquiry,  judicial  or  ex- 
trajudicial is  to  obtain  a  certainty  of  the  offence  charged. 

The  Instruction  which  is  before  us,  outlines,  the  manner 
in  which  both  these  investigations — namely  the  extrajudi- 
cial, and  the  judicial,  or  trial  proper — must  be  conducted. 
Yet,  like  most  laws,  the  Instruction  merely  outlines  the  main 
features  of  the  procedure,  and  presupposes  a  full  and  ac- 
curate knowledge  of  the  Canon  law  bearing  on  the  subject. 

We  have  endeavored  in  these  pages  to  fill  up  this  out- 
line. Hence  we  explain,  in  plain  and  simple  terms,  the 
various  parts  of  the  Instruction ;  the  consecutive  order  in 
which  the  different  stages  of  the  trial  follow  upon  each 
other ;  and  the  connection  of  each  article  or  part  with  the 
whole  Instruction.  We  have  thus  endeavored  to  make  it 
easy  for  all  Ecclesiastics  to  understand  our  "  New  Pro- 
cedure," even  though  they  have  not  studied  Canon  law. 
PATERSON,  N.  J. 

May  I,    1887. 


PREFACE  TO  THE  SECOND  EDITION. 


The  first  edition  of  this  work,  though  published  but  a 
short  time  ago,  has  already  become  exhausted.  In  the 
present  edition  we  have  made  a  number  of  corrections, 
though  mostly  of  a  typographical  character.  We  have  also 
added,  in  the  appendix,  several  important  documents,  such 
as  the  latest  decisions  of  the  S.  C.  de  Prop.  Fide,  concern- 
ing the  dismissal  and  transfer  of  our  Rectors  who  are  not 
irremovable,  the  manner  in  which  appeals,  also  from  this 
country,  are  heard  at  Rome,  etc. 

We  refer  with  unfeigned  pleasure  to  the  gracious  letters 
of  commendation  from  their  Eminences,  Cardinal  Simeoni, 
Prefect  of  the  Propaganda,  Cardinal  Gibbons,  and  Cardinal 
Mazella.  These  letters  will  be  found  on  the  front  pages  of 
this  volume. 


PATERSON 
March 


N,  N.  J.,          ) 
ch  20,  1 888.     ) 


CONTENTS. 


PAGE. 

Title  Page, i 

Imprimatur  and  Testimonials, 2 

Preface,  .        .        - 4 


PART  I. 

The  INSTEUCTIO  CUM  MAGNOPERE  in  general. 
CHAPTER   I. 

Heading  and  Preamble  of  the  Instruction  CUM  MAG- 
NOPERE. 

ART.   I. 

Rules  for  explaining  and  understanding  the   Instruc- 
tion,           7 

ART.  II. 
Nature  of  the  trial  outlined  in  the  Instruction,    .         .         12 

ART.    III. 

Aim  or  scope  of  the  Instruction,  .         .         .          .  13 

ART.     IV. 

Causes  or  matters  to  which  the  Instruction  extends,  .         16 

ART.  v. 
Synopsis  of  the  Instruction  and  of  the  trial,         .         .         20 


viii  Contents. 

PART    II. 

PAGE. 

Tbe  INSTRUCTIO  CUM  MAG-NOPEUE  in  detail. 

CHAPTER   I. 
Preventive  Remedies— Manner  of  Imposing  them. 

ART.    I. 

Right  and  Duty  of  the  Ordinary  to  inflict  Canonical 

Remedies, 24 

ART.    II. 

The  various  kinds  of  Canonical  Remedies,         .         .         25 

ART.    III. 

Discretionary  power  of   the   Ordinary    in   inflicting 

punishments, 25 

ART.    IV. 

What  are  the  Preventive  Remedies  ?   .         .         .         .         28 

ART.    V. 

When  and  how  are  the    Preventive    Remedies  Im- 
posed?      28 

ART.     VI. 

How  the  Canonical  Admonitions  are  given,         .         .         30 

ART.    VII. 

When  the  Formal  Precept  is  Imposed— its  tenor,        .         32 

ART.   VIII. 

How  the  Precept  is  Communicated  to  the  delinquent,         33 

CHAPTER   II. 

The  Canonical  Summary  Trial,  or  mode  of  proceed- 
ing, which  must  be  observed  in  the  United 
States,  in  inflicting  Repressive 
Punishments. 


Contents.  ix 

ART.    IX. 

PAGE. 

Is  a  trial  always  necessary  before  a  Repressive  Pun- 
ishment can  be  inflicted  ?         .                 .  •       .         .  37 
§  i.  Procedure  ex  informata  conscientia,         .         .  37 
•  §  2.  Procedure  ex  notorio, 42 

ART.   X. 

Form  of  trial.  Various  classes  of  crimes,  .  .  .  *  48 
§  i.  Different  classes  of  crimes  punishable,  .  .•  49 
§  2.  Nature  of  the  trial,  .  .  .  .  .  51 

ART.    XI. 

Manner  of  beginning  the  trial,      ...        .        .        .         55 

ART.    XII. 

The  preliminary  trial  which  precedes  the  citation  of 

the  accused, 63 

ART.    XIII. 

The  Diocesan  Prosecutor, 75 

ART.   XIV. 

Mode  of  serving  judicial  notices  and  citations,    .         .         Si 

ART.  XV. 

Groundwork  or  basis  of  the  Prosecutor's  charges,      .         82 

ART.    XVI. 

What  kind  of  proof  is  required  for  the  citation  and 
eventual  conviction  and  condemnation  of  the  ac- 
cused?   85 

ART.   XVII. 

How  witnesses  are  examined  pro  informatione  curias, 

prior  to  the  citation  of  the  accused,      ...        94 

ART.  xvin. 

The  oath  taken  by  the  witnesses  and  by  others  who 

take  any  part  in  the  trial,       .         .         .         .  no 


x  Contents. 

• 

ART.   XIX. 

PAGE. 

How  witnesses  are  examined  who  are  in  a  distant 

part  of  the  diocese,  or  out  of  it  altogether,  .        .       103 

ART.  xx. 

Admissibility  of  hear-say  or  indirect  witnesses,  .  .  109 
§  i.  Witnesses  de  credulitate,  .  .  .  .no 
§  2.  Witnesses  de  auditu  alieno,  .  .  .  1 1 1 

§  3.  Hear-say  Witnesses — Testes  de  fama,  de  Re- 

-lato, 113 

CHAPTER   III. 

The  Trial  continued— From  the  citation  to  the  de- 
fence of  the  accused. 

ART.   XXI. 

Citation  of  the  accused,         .         .         .  *  .        .119 

ARTS.   XXII.,   XXIII. 

Contents  of  the  Citation, 122 

ART.    XXIV. 

Contumacy  of  the  accused,  or  his  refusal  to  obey  the 

citation 123 

ART.   XXV. 

The  hearing  given  the  accused  as  soon  as  he  appears 

on  due  citation.     Exceptions  proposed  by  him,    .       127 

ART.   XXVI. 

The  Plea  or  issue  and  the  Production  of  the  Proofs  of 

guilt, .        .I31 

§  i.  The  "  Contestatio  delicti,"      .        .        .        -131 
§  2.  Manner  in  which  the   Prosecutor  produces 

the  proofs  of  guilt. — "  Processus  Publicatio,"       137 


Contents.  xi 

CHAPTER   IV. 

PAGE. 

The  defence. — Close  of  the  Trial. 

ART.    XXVII. 

The  Defence. — Mode  of  conducting  it,         .         .        .153 

ART.   XXVIII. 
Delays  given  during  the  trial,        .         .         .         .         .159 

ART.    XXIX. 

Close  of  the  Trial  and  Resume  of  the  auditor,     .         .       161 

CHAPTER  V. 
The  summing-up,  and  the  final  sentence. 

ART.    XXX. 

The    Defendant's    Advocate. — Appointment,   Rights, 

and  Duties, 165 

ART.    XXXI. 
When  the  judge  appoints  an  advocate  for  the  accused,       171 

ART.   XXXII. 

The  summing  up  of  the  case  by  the   Defendant's  ad- 
vocate,         .          .          .         .          .          .  .172 

ART.  xxxni. 
The  summing  up  by  the  Diocesan   Prosecutor,         .       174 

ART.    XXXIV. 
The  final  sentence — Its  form  and  tenor,         .         .         .       176 

ART.    XXXV. 

How  the  sentence  is  delivered  to  the  accused,         .       178 


xii  Contents. 

CHAPTER  VI. 

PACK. 

Appeals. 

ART.    XXXVI. 

Nature,  object  and  effect  of  appeals,  .  .  .  181 
§  i.  Nature  and  object  of  appeals,  .  .  .182 
§2.  Who  can,  and  who  cannot  appeal  ?  .  .  184 
§3.  To  whom  should  appeals  be  made  ?  .  .  185 
§  4.  In  what  cases  is  it  allowed  to  appeal  ?  In 

what  cases  is   it  forbidden   to   appeal?         .       186 
I.  Cases    which  do    not  admit  of   any  appeal 

whatever,          .          .  .          .  .187 

II.    Cases  which  admit  only  of  a  devolutive  ap- 
peal, or    even  only  of   a  simple  recourse,       189 
III.    Cases  which  admit  of   a  suspensive  appeal,       198 

ART.  XXXVII. 

When  the  appeal  must  be   interposed,         . «  .       203 

ART.  XXXVIII. 

Duties  of  the  judge  "  a  quo,"  with  regard  to  appeals,       206 

ART.  xxxix. 

Right  and  duties  of  the  judge  ".ad  quern,"   in  regard 
to  receiving  appeals,  issuing  inhibitions,  and  re- 
voking  attentates,          .          .....       209 

§  i.  Admission  of  the  appeal,         .         .         .         .       209 

§  2.   Inhibitions,       .         .         .         .  *   .         .215 

§  3.  Attentates,        .         .         .         .  .         .218 

ART.  XL. 
Extinction  of  the  appeal, 221 

ART.    XLI. 

Mode   of  adjudicating   appeals,          ....       223 
§  i.  Procedure  before  the  Metropolitan,         .         .       223 


Contents.  xiii 

PAGE. 

§  2.  Procedure  before  the  S.  C.  de  Prop.  Fide,    .       228 
§  3.  How  the  Sacred  Congregation  hears  and  de- 
cides appeals,          .         .          .         .          .         .231 

CHAPTER  VII. 
Several  other  questions  treated  by  the  Instruction. 

ART.    XLII. 

How  the  ordinary  is  to  act,  when  an  ecclesiastic  is 

placed  on  trial  before  the  civil  court,         .         .       237 

ART.  XLIII. 

When  ordinaries  should  consult  the  Holy  See— Nul- 
lity ol  the   proceedings, 238 

§  i.  Questions  addressed  to  the   Holy  See,         .  238 
§  2.  Nullity   of   the   proceedings — Complaint   of 

nullity, .         .  239 

§  3.  Reinstatement, 241 

§  4.  Recourse, 242 

ART.    XLIV. 

When  can  an  episcopal  court  be  condemned   to  pay 

costs  and  damages  ? 242 

CHAPTER  VIII. 

Present  status  of  our  Rectors  who  are  not  irremov- 
able under  the  Instruction  "  Cum  Magnopere." 

ART.    XLV. 

Dismissal  and   transfer  of  our  Rectors   who  are  not 

irremovable,    ........       246 

§  i.  Dismissal  of  our  removable  Rectors,       .         .       246 
§  2.  Transfer  of  our  Rectors,  who  are  not  irre- 
movable,  .251 


INDEX  TO  APPENDIX. 
I. 

PAGE. 

The  Instruction  of  the  S.  C.  de  Prop.  Fide,  "  Cum 
Magnopere  "  of  1884.  Latin  text,  with  an  accur- 
ate English  translation.  .  .  .  .  .255 

II. 

The    constitution    ad  Militantis   of    Pope    Benedict 

XIV.,  concerning  appeals — and  inhibitions.          .       265 

III. 

Decrees  issued  by  the  Sacred  Congregation  of  Bish- 
ops, in  1600,  respecting  appeals  and  inhibitions.  276 

IV. 

Decrees  of  Pope  Urban  VIII.,  issued  in  1626,  in  re- 
gard to  appeals  and  inhibitions.  .  .  .  278 

V. 

Additions  to,  and  explanations  of,  some  of  the  above 

decrees  made  by  Pope  Benedict  XIII.          .         .       279 

VI. 

Appointment  of  a  promoter  gcneralis  at  Rome  to  rep- 
resent and  defend  Episcopal  courts,  in  cases  ap- 
pealed. ........  285 


Contents,  xv 

VII. 

PAGE. 

Decree  issued  by  the  S.  C.  EE.  et  RR.  on  Dec.  18, 

1835,  for  criminal  causes 287 

VIII. 

Circular  issued  by  the   S.  C.  EE.  et  RR.  on  Aug.  i, 

1851,  respecting  criminal  causes.          .          .         .       288 

IX. 

Formulas  of  trials  in  criminal  causes  made  obligatory 
in  the  circular  of  the  C.  S.  EE.  et  RR.  of  Aug.  i, 
1851.  . '  .  290 

X. 

Resolution  taken  by  the  S.  C.  EE.  et  RR.  on  Feb".  22, 

1839,  regarding  appeals.         .....       292 

XI. 

Decree  of  Pope  Benedict  XIII.,  forbidding  the  oath 

to  be  administered  to  the  accused.        .        .  293 

XII. 
Provisional  Regulation   concerning   the    hearing   of 

Appeals  at  Rome 294 

XIII. 

Decree   of  the  S.  C.  de  Prop.   Fide,  issued  in  1884, 

regarding  Suspensions  "  ex  inf.  conscientia."         .       295 

XIV. 

Resolution  of  the    Propaganda,    in    1887,    respecting 
the  Dismissal  and  Transfer  of  our  Rectors  who  are  not 

Irremovable 297 

XV. 

The  Repetition  of  Witnesses 298 


,     PART  I. 

THE  INSTRUCTIO,   IN  GENERAL. 
CHAPTER    I. 

HEADING    AND     PREAMBLE    OF    THE    INSTRUCTION 
CUM   MAGNOPERE. 

1.  The  title  or  heading  of  the  Instruction  points  out  the 
cases  in  which  the  trial  prescribed  by  it  must  take  place. 
The  preamble  explains  the  aim  which  the  S.  C.  de  Prop. 
Fide  had  in   view    in   issuing   the   document.      We   shall, 
therefore,  under  the  present  chapter,  discuss  (a)  the  rules 
which  serve  as  guides  in  explaining  and  understanding  the 
Instruction;  (b)  the  nature  of  the  trial  prescribed  in  it;  (c) 
the  cases  to  which  it  extends ;  (d)  its  aim  and  scope ;  (c)  fi- 
nally, we  shall  give  a  brief  synopsis  of  the  entire  proceed- 
ings. 

ART.  I. 
Rules  for  Explaining  and  Understanding  the  Instruction. 

2.  The  celebrated  canonist,  Avanzini,  in  his  explanation 
of  the  Const.  Apost.  Sedis  of  Pope  Pius  IX.,  says  (p.  6)  that 
all  laws,  even  the   wisest,  have  this  peculiar  feature,  that 
when  there  is  question  of  their  application,  they  easily  give 
rise  to  doubts  and  difficulties,  according  to  the  nature  of 
the  cases  to  which,  and  the  circumstances  in  which,  they 
are  to  be  applied.      Hence  the  necessity  of  explaining  laws. 


8  Heading  and  Preamble  of  the 

3.  These  explanations  are  made  (a)  either  by  the  law-giver 
himself — i.e.,  by  the  superior  who  made  the  law,  or   by  his 
successor,  or  by  his  higher  superior ;  (b)  or  by  private  per- 
sons, namely,  learned  men  and  authors,  or  also  by  a  law- 
giver who  is  inferior  to  the  one  who  made  the  law.     The 
former  kind  of  explanations  is  called  authentic;  the  latter 
doctrinal. 

4.  Force  and  effect  of  explanations. — An  authentic  explan- 
ation has  the  force  of  law  ;  it  therefore  creates  law  and  has  to 
be  obeyed  like  the  law  itself,  which  it  explains.     Hence  it  is 
termed   interpretatio  ncccssaria.     A  doctrinal  explanation,  on 
the  other  hand,   has  indeed  not  the  force   of   law,  yet   it 
creates  a  probability  as  to  the  meaning  of  the  law. '     There- 
fore   it    is   called   interpretatio  probabilis  ;    it   need    not    be 
followed,  save  when  it  is  endorsed  by  the  common  consent 
of  approved  authors,  or  unless  it  is  based  upon  arguments 
which  are  better  than  those  adduced  against  it. 8 

5.  Who  has  the  right  to  give  an  authentic  explanation  of  the 
law?      Only  the  superior  who  made  the  law,  or  his  succes- 
sor, or  higher  superior.     From  this  it  follows  that  as  the  In- 
struction is  a  law  made  by  the  Holy  See,  it  can  be  authenti- 
cally explained  by  the  Holy  See  only,  and  not  by  any  other 
ecclesiastical  superior. 

6.  Who   has   the   right   to   explain   laics   doctrinally?     Any 
person,  theologian  or  canonist  whatever  has  a  right  to  ex- 
plain a  law,  provided,  of  course,  he  does  so  according  to 
the  rules  laid  down  by  canonists.  *     This  right  of  private 
persons  or  authors  to  explain  laws  doctrinally  is  not  only 
useful  but  necessary.     For,  on  the  one  hand,  laws  are  never 
so  explicit  and  clear  as  to  remove  ambiguity  and  doubts ; 
and,  on  the  other,  it  is  not  always  possible  or  even  expedient 
to  have  these  doubts  solved  by  the  law-giver  himself. 4     The 

i  Leur .,  For.  Eccl.,  1.  i.,  t.  2,  q.  152.  *  Ib.  *  Ib.,  q.  155. 

«  Ib.,  1.  c. 


Instruction  Cum  Magnopere.  9 

Holy  See  itself,  when  applied  to  for  an  authentic  explan- 
ation of  a  law,  sometimes  refuses  to  give  it  and  refers  the 
applicants  to  approved  authors  by  the  formula:  Consulat 
probates  anctores.  The  explanation  of  private  authors  cre- 
ates, as  we  have  seen,  a  probability  as  to  the  meaning  of  the 
law ;  hence  it  may  be  prudently  and  safely  followed,  as 
long  as  it  is  not  shown  to  be  false  or  improbable. '  Some- 
times this  private  explanation  creates  not  merely  a  probabil- 
ity, but  also  a  certainty  as  to  the  meaning  of  the  law.  This 
is  chiefly  the  case  when  it  is  supported  by  the  consensus  com- 
nninis  DD. 

7.  Q.  What  are  the  chief  rules  which  private  persons — 
such  as  teachers,  authors,  etc. — should  follow  when  they  ex- 
plain laws,  and  therefore  also  the  present  Instruction  ? 

A.  These:  Rule  I. —  Vcrba  clara  non  admit tunt  interprcta- 
tioncm.  In  other  words,  when  the  words  of  the  law  are 
clear,  they  do  not  admit  of  any  explanation  or  conjecture  as 
to  the  will  of  the  law-giver.  2  Hence  it  is  not  allowed,  in 
explaining  a  law,  to  recede  from  the  plain  and  obvious 
sense  of  its  words,  unless  it  is  manifest,  from  other 
sources,  that  the  law-giver  wished  to  convey  a  different 
meaning. 

8.  Rule  II. —  TJtc  explanation  should  agree  with  the  intention 
or  mind  of  the  law-giver,  rather  than  the  naked  words  of  the 
law. 3      This  rule  is  in  accordance  with  the  axiom :    Ratio 
legis,  est  anima  legis.     That  is,  the  mind  or  intention  of  the 
law-giver  is  to  the  law  what  the  soul  is  to  the  body.     For,  as 
the  soul  governs  the  body,  so  the  intention  of  the  law-giver 
governs  the  words  of  the  law.     Now  this  intention  is  to  be 
gathered  (a)  from    the  reason  stated  in  the  law  itself ;  (b)  or 
from  the  circumstances  which  gave  rise  to  the  law.     How- 
ever, as  we  have  seen,  it  is  not  allowed  to  recede  from  the 


1  Avanz.,  1.  c.,  p.  9.  2  Leur.,  1,  c.,  q.  158. 

3  Can.    24,    q.    5;    1.,   16  ff.  de    Leg.  ;     Reg.    88,    de    Reg.  jur.  in  6°. 


i  o  Heading  and  Preamble  of  the 

plain  sense  of  the  wording  of  a  law,  unless  it  is  beyond 
doubt  that  the  law-giver  wished  to  convey  a  different  mean- 
ing. ' 

9.  Rule  III. —  The  ivords  of  the  law  are  to  be  taken  in  tlieir 
natural  signification,  unless  the  subject-matter  of  the  law  plainly 
shows  the  contrary.     The  justice  of  this  rule  is  apparent  from 
the  fact  that  if  it  were  allowed  to  recede  from  the  ordinary 
and  natural  meaning  of  words,  no  law  would  be  secure  or 
free  from  cavils. s 

10.  Rule  IV. —  Where  the  words  of  the  law  are  general  and 
make  no  exception,  the  interpreter  should  not  make  any  exception.* 
This  is  in  accordance  with  the  axiom  :     "  Ubi  lex  non  distin- 
guit,    neque  nos  distinguere  debemus." 4     This  rule  is  evi- 
dently sound.     For  where  the  law  itself  speaks  in  general 
terms,  and  does  not  except  any  person  or  case  from  its 
provisions,  it  does  not  behoove  the  interpreter  to  make  any 
exception. 

11.  Rule   V. —  Where,  however,  the  law  itself  except s  a  certain 
ease  from  its  provisions,  it  is,  by  that  very  fact,  considered  as 
explaining  and  confirming  its  provisions,  in  everything  else,  ac- 
cording to  the  axiom  :  exceptio  format  regulam.     And  justly  so. 
For  it  is  plain  that  whoever  makes  a  law,  and  expressly 
provides  that  it  shall  not  apply  to  a  certain  case,  by  that 
very  fact  declares  that  it  shall  apply  to  all  other  cases,  save 
the  one  excepted. 5 

Let  us  apply  this  rule  to  the  Instruction.  This  law,  in 
art.  ix.,  expressly  excepts  from  its  provisions  sentences  ex 
informata  conscientia.  From  this  exception  it  follows  that 
in  all  other  cases,  where  a  punishment  is  to  be  inflicted,  the 
trial  laid  down  in  the  Instruction  must  be  made  use  of. 

12.  Rule  VI. — The  next  rule  is  thus  stated  by  canonists: 
Ubi  eadem  est  ratio,  cadcm  est  juris  dispositio.     The  meaning 

i   Reiff.,  1.  i.,  t.  2.,  n    386-390.       -  Reiff.,  1.  c.,  n.  395.       3  Cap.  22,  de  Priv. 
1  L.  de  Pretio.,  ff.  de  Public,  in  act.  *  Reiff.,  1.  c.,  n.  405. 


Instruction  Cum  Magnopcre.  1 1 

of  this  rule  is,  that  it  is  allowed,  generally  speaking,  to  ex- 
tend a  law  from  the  case  to  which  it  applies  to  other  cases 
which  are  similar  to  it,  and  have  the  same  or  a  similar  ob- 
ject. In  other  words,  a  law  can  be  extended  by  a  private 
interpreter  to  cases  not  expressly  or  directly  included  in 
the  law,  whenever  it  is  found  that  the  object  or  motive 
which  the  law-giver  had  in  view  applies  to  these  cases. 
Thus  the  Roman  law,  as  adopted  by  the  Church,  says : 
"  Semper  quasi  hoc  legibus  inesse  credi  oportet,  ut  ad  eas 
quoque  personas  et  ad  eas  res  pertineant,  quae  quandoque 
similes  crimf."  The  reason  is  thus  given  by  the  sacred 
canons:  Cum  de  similibus  idem  cst  judicium.  This  is  called 
the  argnmcntnm  a  simili  or  a  part. 

13.  Nor    can   it   be   objected  against  this   rule,    that   by 
giving   such   an    explanation,  a  private   author   or   person 
would  create  a  law,  that  is,  make  a  new  law.     Reiflfenstuei 
1.   I.,  t.  2,  n.  412,  and  Leurenius,  1.  c.,  q.  159,  n.  5,  in  common 
with   canonists  in  general,  answer  that  the  objection  does 
not    hold.      For,    say    they,    it   is,    as    we    have    already 
seen,  the   intention  of   the  law-giver  that   his  law   should 
extend  to  all  similar  cases.     In  fact,  a  law-giver  cannot  fore- 
see or  expressly  comprise  every  case  in  his  law  ;    hence,  he 
is  always  presumed  as  wishing  that  his  law  should  extend 
to  all  other  cases,  to  which  the  motives,  purpose,  and  inten- 
tion apply,  that  induced  him  to  make  the  law.1 

14.  Rule   VI L — In  all  causes,  equity  slwuld  rather  be  attended 
to  tlian  strict  laiv?     Thus  the  Roman  law,  as  adopted  by  the 
Church,  says:    "  In  omnibus  quidem,  maxime  tamen  in  jure, 
nsquitas  spectanda  est."  :     By  equity  is  here  meant  justice 
tempered  with  mercy,  in  accordance  with  the  dictates  of 
natural   reason.     There  are  two  kinds  of  equity  :    written 
and  unwritten.     Written  equity  is  that  which  is  indicated  in 
and,    therefore,   inferrible  from    the   law  itself.     Unwritten 

1  Leur.,  1.  c.,  q    159,  n.  5.       -  Reiff .,  1.  c.,  n.  415.         3  L.  i  ff.  de  Reg.  jur. 


1 2  Heading  and  Preamble  of  the 

equity  is  that  which  is  based  upon  the  general  feelings  of 
mankind.  Now,  by  the  equity  of  which  our  present  rule 
speaks,  is  understood  primarily  written  equity.  We  say 
primarily ;  for,  secondarily — i.e.,  where  there  is  no  written 
equity,  unwritten  equity  is  also  meant.1 

15.  Rule   VIII. — Laivs   which   derogate  from   the   " jus  com- 
mune "  of  the  Church  must  be  strictly  construed ;  and  that  for 
t\vo  reasons :   first,  because,   being  a  derogation  from  the 
general  law,  they  are  looked  upon  by  the  law  as  odious ; 
second,  because  they  are  regarded  as  privileges  and  dis- 
pensations.2 

16.  Rule  IX. — When   there  is  question  of   a  law  which 
corrects  or  amends  a  former  law,  the  following  rule  obtains  : 
The  former  law  is  changed  neither  more  nor  less  than  is  ex- 
pressly stated  in  the  new  law.     How  this  rule  applies  to  the 
Instruction  Cum  Magnopere  as  corrective  of  the  Instruction 
Quamvis  of  1878,  we  shall  see  further  on.. 

ART.  II. 
Nature  of  the  Trial  Outlined  in  the  Instruction. 

17.  A  trial,  speaking  in  general,  is  the  legitimate  hearing, 
discussion  and  decision,  in  the  presence  of  a  judge,  of  a 
matter    which    is   controverted    between    two    contending 
parties.3     Trials,  thus  defined,  are  divided  into  secular  and 
ecclesiastical,  according  as  they  take  place  before  a  secular 
or  an  ecclesiastical  judge.     (Our  Elements,  Vol.  II.,  n.  696.) 

1 8.  Ecclesiastical  trials  are  subdivided  as  follows:   I.  By 
reason    of    their    subject    matter,    into   civil    and    criminal. 
Criminal  trials  are  those  where  offences  are  punished.     Civil 
trials  are  those  where  there  is  question — v.g.,  of  the  validity 
of  a  marriage,  the  jurisdiction  of  a  prelate,  and  the  like.     2. 
By  reason  of  their  formalities,  into  ordinary  or  formal  and 

1   Reiflf.,  1.  c.,  n.  416,  417.  -   Leur.,  1.  c.,  q.  i6r. 

3     Ferraris,  V.  Judicium,  n.  i. 


Instruction   Cum  Magnopcrc.  13 

extraordinary.     For  the  other  divisions,  see  our  Elements, 
Vol.  II.,  n.  699  sq. 

19.  The  trial  laid  down  and  prescribed  by  the  Instruction 
is  a  canonical  trial,  which  is  (a)  criminal  (processus  canonicus 
criminalis],  (b)  and  summary,  as  we  shall  show  further  on. 

ART.  III. 
Aim  or  Scope  of  the  "Instruction." 

20.  We  have  seen  that   the  intention  or  aim  of  the  law- 
giver is  the  soul  of  the  law.     Hence,  a  law  should  be  ex- 
plained in  accordance  with  the  purpose   of   the  law-giver, 
rather  than  the  naked  words  of  the  law.     What,  then,  is  the 
intention  or  scope  which  the  S.  C.  de  Prop.  Fide  had  in 
view,  when  it  issued   the    Instruction?     The   preamble   of 
the    Instruction  gives  the  answer.      Here  are  the  words  : 
"  Cum    magnopere    hujus    S.    Consilii    intersit    in    judiciis 
ecclesiasticis  earn  methodum  servari,  quae  et  temporum  cir- 
cumstantiis  opportune  respondeat,  et  regulari  justitiae  ad- 
ministrationi,      necnon      Praslatorum     auctoritati     tuendas, 
querelisque    reorum    prascavendis  par  omnino   sit,    placuit 
iterum  ad  examen  revocari  .  .  .  ." 

21.  Here,  then,  the  S.  Congregation  clearly  explains  the 
aims  it  had  in  view   in  issuing  the  Instruction.     These  aims 
are  :     To  establish  such  a  mode  of   hearing  and  deciding 
criminal  and  disciplinary  causes  of  ecclesiastics,  (a)  as  would 
be  adapted  to  the  wants  of   our  time  ;  (U)   be  wholly  ade- 
quate to  the  regular  administration  of  justice  ;  (c)  protect 
the  authority  of  prelates  ;    (d}  and  prevent  complaints  on 
the  part  of  the  accused. 

22.  Let  us  briefly  explain  each  of  these  ends  of  the  Sacred 
Congregation.     The  first  is  to  establish  cam  mcthodnm  quce 
ct  temporum    circumstantiis  opportune  respondent  —  i.e.,    such  a 
mode  of  proceeding  as  is  adapted  to  the  times.     According 
to  the  general  law  of  the  Church,  criminal  and  disciplinary 


14  Heading  and  Preamble  of  the 

causes  must  always  be  tried  by  a  formal  or  ordinary  canoni- 
cal trial ;  they  can  never  be  heard  and  decided  by  a  sum- 
mary canonical  trial.1  Now  it  would  be  scarcely  possible, 
at  the  present  day,  to  observe  in  this  country  all  the  for- 
malities of  the  proccssus  ordinarius  or  formal  canonical  trial. 
Accordingly  the  Sacred  Congregation,  as  it  expressly 
states  in  article  x.,  prescribes  that  mode  of  procedure 
which  is  called  the  canonical  summary  trial — proccssus  sum- 
marius.  Consequently  the  Sacred  Congregation  grants,  for 
this  country,  an  unconditional  dispensation  from  the  obli- 
gation of  observing  the  ordinary  canonical  trial,  in  the 
hearing  of  criminal  causes,  and  allows  absolutely  and  un- 
conditionally of  the  summary  process.  This  is  a  larger 
concession  than  that  granted  by  the  Holy  See  to  Bishops  of 
European  countries,  in  the  Instruction  of  the  S.  C.  EE.  et 
RR.  issued  June  11,  1880.  For  this  latter  Instruction  dis- 
penses bishops  of  European  countries  from  the  obligation 
of  observing  the  formal  canonical  process  and  allows  of  the 
summary  trial  in  criminal  causes  of  ecclesiastics,  only  on 
condition  that  it  is  impossible  or  inexpedient  to  carry  out 
the  ordinary  trial. 

23.  The  second  aim.  of  the  Sacred  Congregation  is  to  es- 
tablish "  earn  methodum,  quae  rcgulari  justifies  administra- 
tioni  par  omnino  sit"  In  other  words,  the  Holy  See,  while 
allowing  of  the  summary  trial,  wished,  nevertheless,  to  pro- 
vide such  a  mode  of  proceeding  as  would  be  wholly  and  in 
every  respect — par  omnino — adequate  to  the  regular  admin- 
istration of  justice.  Hence,  also,  the  S.  Congregation,  while 
dispensing  with  certain  accidental  formalities  of  solemn  ca- 
nonical trials,  nevertheless  retains  and  prescribes,  in  the 
Instruction  (art.  x),  each  and  every  substantial  formality  of 
justice.  (See  our  Elements,  Vol.  II.,  n.  692,  693,  694,  698, 
704.) 

1   Our  Elements,  vol.  ii.,  n.    1275,  sq. 


Instruction   Cum  Magnopcrc.  15 

24.  By  the  phrase  rcgularis  justifies  administratio  is  here 
meant    the  legitimate  administration    of   vindicative  justice, 
that  is,  of  that  justice  which  metes  out  just  and  merited 
punishment  to  the   offender.      Consequently,    wherever    a 
punishment  is  to  be  inflicted — v.g.,  the  dismissal  of  a  rector 
who  is  not  irremovable,  in  punishment  of  crime — the  trial 
laid  down  in  the  Instruction  must  be  given. 

25.  The  third  end  of  the   S.  Congregation  is  to  provide 
'•earn  methodum  quae  Prcelatoru  m  auctoritati  tucnda  par  om- 
nino  sit."      The  reason  upon  which  this  aim  is  based  is  ap- 
parent.    For,   law   is  the  securest  and  strongest  support  of 
authority.     Hence,  when  the  authority  of  superiors  is  exer- 
cised in  accordance  with  law,  it  is  respected  by  all,  and  is 
thus  strengthened.     But  when  it  is  exercised  not  in  accord- 
ance with  the  rules  of  law,  and    consequently   when  it  is 
exercised  arbitrarily,  it  makes  itself  odious,  is  hated  by  sub- 
jects, and  is  thus  weakened. 

26.  The  fourtJi  intention  of  the  S.  Congregation  is  to  es- 
tablish "  earn  methodum  quee  qucrclis  reorum  pr&cavendis  par 
omnino  sit."    Nothing  is  better  calculated  to  stop  complaints, 
on  the  part  of  those  who  are  tried  and  condemned,  than 
the  observance  of  due  forms  of  law.     When  the  accused 
receives  a  fair,  full  and  impartial  trial;  when  the  fullest  lib- 
erty is  given   him  to  defend  himself;  when  every  possible 
means  is  afforded   him  to  show  his  innocence ;  and  when, 
notwithstanding  all  this,  he  is  found  guilty,  then  his  guilt 
becomes   established    publicly,    that   is,  in   such  a   manner 
that  it  will  convince  not   merely  the  judge,  but  everybody 
else.     Consequently,  the  accused  cannot  complain  if  he  is 
punished  after  such   a  trial. — And  if  he,  nevertheless,  does 
complain,  the  justice  or  injustice  of  his  sentence  is  a  mat- 
ter of  public   record   and  can   be  ascertained  by  any  one. 
Besides,  people  will  all  know  that  he  has  had  a  fair  trial 
and  that  consequently   he   has  no  just  cause  of  complaint. 
In  accordance  with   its  aim,    the   Sacred  Congregation  has 


1 6  Heading  and  Preamble  of  the 

given   the   accused,  in  the  trial  laid  down  by  it,  the  fullest 
liberty  to  defend  himself. 

27.  We  have  said  above,  that  the  aim  of  the  law-giver 
may  also  be  gathered  from  the  circumstances  under  which 
he  issues  the  law.     Now  the  circumstances  under  which 
the  Sacred  Congregation  issued  the   Instruction  are  well 
known.     The  mode  of  procedure  laid  down  in  the  Instruc- 
tion Quamvis,  of  July  20,  1878,  and  in  the  subsequent  an- 
swer ad  Dubia,  had  been  found  inadequate  in  a  number  of 
respects.     Thus  it  was  not  a  canonical  trial.     The  appeal 
permitted  by   it   was   not   suspensive.     Hence   it    did   not 
work  satisfactorily.     It  was  to  remedy  these  inconveniences, 
and  thus  to  provide  a  trial  or  mode  of  proceeding    which 
would  be  wholly  adequate  to  attain  the  above  ends,  that 
the  Sacred   Congregation    re-examined    the   Instruction  of 
1 878,  and  also  the  subsequent  answer  ad  Dubia ;  and  that, 
having  materially  weighed  all  things,  it  decreed    that  the 
present  Instruction  should  be  observed  in  future,  and  that 
consequently  the  Instruction  of  July  20,  1878,  together  with 
the  subsequent  explanations  ad  Dubia,  were  abrogated,  ex- 
cept in  so  far  as  they  were  retained  by  the  present  Instruc- 
tion. 

28.  Here  the  question  arises:     How  far  is  the  Instruction 
of  1878  and  the  subsequent  response  retained  in  the  present 
Instruction  ?     The   answer   will    be   given  by  us,  when  we 
come  to  discuss  articles  xii.  and  xlv.  of  the  Instruction. 

ART.  IV. 
Causes  or  Matters  to  which  the  Instruction  Extends. 

29.  What  are  the  causes  to  which  the  Instruction  extends? 
In  other  words,  what  are  the  cases  in  which  the  mode  of 
proceeding  outlined  in  the   Instruction  must  be  observed? 
This  question  is  answered  by  the  very  title  or  heading  of 
the  Instruction.     This  title  reads:    "  Instructio  Sacra?  Con- 


Instruction   Cum  Magnopere.  1 7 

gregationis  de  Propaganda  Fide,  de  modo  servando  in 
cognoscendis  et  definiendis  causis  criniinalibus  et  disciplinari- 
bns  clericorum,  in  Foederatis  Statibus  Americas  Septen- 
trionalis  ?  The  translation  of  this  heading  is :  The  present 
Instruction  of  the  S.  C.  de  Prop.  Fide  prescribes  the  manner 
of  proceeding  which  must  be  observed  by  the.  Bishops  of 
the  United  States  of  America,  when  there  is  question  of 
hearing  and  deciding  criminal  and  disciplinary  causes  of  ec- 
clesiastics. Consequently  all  criminal  and  disciplinary 
causes  of  ecclesiastics  must  be  disposed  of  in  the  manner 
outlined  by  the  Instruction;  otherwise  the  action  of  the 
superior  is  ipso  jure  null  and  void.  Nay,  his  action  becomes 
invalid,  not  only  when  he  omits  the  entire  proceedings,  but 
also  when  he  sets  aside  any  of  the  prescribed  formalities  of 
the  proceedings.' 

30.  What,  then,  is  meant  by  causes  criminates  and  causes  dis- 
ciplinarcs  ?     For  the  answer  we  refer  the  reader  to  the  third 
volume  of  our  Elements  of  Ecclesiastical  Law,  where  we  fully 
explain  these  phrases.     Suffice  it  here  to  say  that  they  mean 
all  cases  where  (a)  an  ecclesiastical  punishment  (pcena),  (b) 
or  a  censure  (cens-urd),  (c)  or  a  grave  disciplinary  correction 
(grai'is  disciplinaris  coercitid),  is  to  be  inflicted.     This  is  also 
expressly  stated  by  the    TJiird  Plenary  Council  of  Baltimore. 
(n.  310)  as  follows:    "  Animadvertant  autem    Episcopi,  hoc 
uno   casu    excepto   (scilicet  remedium  extrajudiciale  ex  in- 
formata  conscientici),   nullam    poenam    repressivam    adhiberi 
debere,  nisi  praevio  processu  judiciali,  ita  ut  etiam  in  causis. 
quae    dicuntur   ex  notorio,  omnino  consultius  sit  processum 
summarium    de     delicti     notorietate    instruere,    antequam 
pcena  infligatur." 

31.  Against   this   argument,  taken    from    the  title  of  the 
Instruction,  it  may  be  objected  that  the  title  of  a  law,  decree, 
or    Instruction,  does   not  form  part  of  the  law  itself,  and 

1  Instr.,  art.  xliii. 


1 8  Heading  and  Preamble  of  the 

therefore  has  little  or  no  weight.  This  objection  does  not 
hold.  For  all  canonists  teach  that  when  the  title  or  head- 
ing of  a  law  is  authentic,  that  is,  when  it  proceeds  from  the 
law-giver  himself,  it  has  these  four  effects :  First,  it  has  the 
full  force  of  law,  no  less  than  the  text  itself  or  body  of  the 
law  to  which  it  is  prefixed,  whenever  it  makes  up  a  sentence 
which  has  complete  sense  by  itself,  like  the  following  head- 
ings :  "  Ut  beneficium  ecclesiasticum  sine  diminutione  con- 
feratur : "  or,  "  ne  sede  vacante  aliquid  innovetur."  We  say, 
which  has  complete  sense ;  for  when  a  title  has  but  an  im- 
perfect meaning,  is  composed  merely  of  a  word  or  two,  and 
reads,  for  instance,  thus :  "  De  Summa  Trinitate,"  it  has 
no  force  of  law,  though,  in  case  it  is  authentic,  it  has,  like 
headings  with  full  sense,  a  declarative  force. 

32.  Second,  it  has  a  declarative  force,  so  that  where  the  law 
to  which  it  is  prefixed  is  obscure  or  ambiguous,  it  can  and 
should  be  explained  by  the  heading.     From  this  rule  canon- 
ists infer  that  when  a  law  or  instruction  seems  to  admit  of 
two  meanings,  or  appears  in  some  of  its  provisions  to  con- 
tradict its  heading,  that  meaning  is  to  be  preferred  which  is 
more  in  harmony  with  the  title  or  heading.1 

33.  Third,  a  heading  or  title  which  has  complete  sense, 
and  is  more  comprehensive  than  the  enactment  to  which  it  is 
prefixed,  generally  extends  and  enlarges  the  meaning  of  the 
law.2 

34.  Let   us   now   apply   these   rules   to   the   title   of   the 
Instruction.     This   title  was  undoubtedly    prefixed     by    au- 
thority of  the  Holy  See,  and  is  therefore  authentic :  it  con- 
tains, moreover,  as  is  apparent,  full  sense.     Consequently,  it 
has  all  the  effects  and  force  above  described.     Accordingly 
it  is,  beyond  doubt,  that  the  Instruction  extends  to  the  causes 
indicated  above. 

35.  Finally,  if  there  could  be  any  doubt  on  the  matter,  it 

1  Schmalzg.,  1.  c. ,  n.  301.  2  Ib.,  n.  300. 


Instruction  Cum  Magnopere.  19 

has  been  removed  by  the  Holy  See  itself.  For  the  S.  C.  de 
Prop.  Fide,  in  its  answer  to  the  questions  (ad  Dubid)  ad- 
dressed to  it  by  bishops  of  the  United  States,  concerning 
the  Instruction  of  July  20,  1878,  has  expressly  declared  that 
the  latter  applies  to  all  cases  where  an  ecclesiastical  punish- 
ment, or  censure,  or  a  grave  disciplinary  correction  is  to  be 
inflicted.  Here  are  the  words  of  the  Sacred  Congrega- 
tion: "  Instructio  diei  20  July  1878  lata  est  de  casibus,  in 
quibus  ecclesiastica  poena  seu  censura  sit  infligenda,  aut 
gravi  disciplinari  coercitioni  sit  locus."  Now,  the  title  of 
the  present  Instruction,  Cum  Magnopere,  is  precisely  the 
same  as  the  title  of  the  Instruction  of  1878.  Hence  the  re- 
sponse of  the  Holy  See  ad  Dubia  also  applies  fully  to  the 
present  Instruction. 

36.  All  this  is  confirmed  by  article  ix.  of  the  Instruction. 
This  article  expressly  excepts  sentences  ex   informata   con- 
scientia  from  the  provisions  of  the   Instruction.     Now,   as 
we  have  seen,  cxccptio  fir  mat  regulam.     Hence,  by  the  very 
fact  of  making  this  exception,  the  Instruction  decrees  that 
in  all   other  cases  where  any  repressive  punishment  is   to 
be  inflicted,   the  trial  outlined  in  the  Instruction  must   pre- 
cede the  punishment.     Lastly,   the  intention   of  the   Sacred 
Congregation  corroborates  our  teaching.     One  of  its  aims, 
as  already  shown,  was  to  provide  an  adequate  mode  of  pro- 
cedure for  the  administration  of  justice — i.e.,  for  the  inflic- 
tion of  punishments. 

37.  The   Instruction  applies    only   to   ecclesiastics,  not  to 
laics.     In  fact,  at  the  present  day,  the  Church,  also  with  us, 
finds  it  almost  impossible  to  proceed  judicially  against  laics, 
even    when    they    commit    offences    strictly    ecclesiastical. 
The  Instruction,  besides  laying  down  the  procedure  for  in- 
flicting repressive  punishments,  also  gives  the  manner  of 
imposing  preventive  remedies,  as  we  shall  see. 


2O  Heading  and  Preamble  of  the 

ART.  V. 
Synopsis  of  the  Instruction. 

38.  Before  entering  upon  the  details  of  the  Instruction  we 
shall  here  give  a  brief  outline  of  it.     The  Instruction  gives, 
as  we  have  seen,  the  procedure   which   must  be  observed 
prior  to  the  infliction  of  punishments.     Now,  ecclesiastical 
punishments  are  of  two  kinds  :  preventive  and  repressive.  ' 
The   chief    preventive  remedies  are :     Spiritual    exercises, 
admonitions  and  the  precept.  2      Before  any  of  these  can  be 
imposed,  an  extrajudicial  investigation  must  be  made  and 
put  in  writing.  s     As  to  the  manner  of  giving  the  canonical 
warnings,  the  Instruction  allows  them  to  be  given  either  in 
a  paternal  or  legal  form.  *     When  the  warnings  prove  use- 
less, the  formal  injunction  (pratccptiuii)  is  given,  in  the  man- 
ner stated  by  the  Instruction.  5     When  even  the  precept   is 
disregarded,  nothing  remains  for  the  Ordinary  but   to  pro- 
ceed to  the  judicial  process  or  trial  proper,  for  the  purpose 
of  juridically  establishing  the  guilt  of  the  accused  and  in- 
flicting punishment.  6 

39.  By  repressive  punishments,  as  we  shall  show  fullv  in 
the  third  volume  of  our  Elements,  are  meant  chiefly  dismis- 
sals from  parish  or  mission,  penal  transfers,  suspensions,  etc. 
A  canonical  trial,  or  proccssus  judicialis,  must    precede  all 
repressive  punishments,  save  in  the  one  case  of  suspension 
ex  informata  conscicntia.  "     This  trial,  which   is  summary,  is 
begun  by  the  judge  ex  officio.  *     The  court  conducting  the 
trial  is  composed  of  the  bishop,  or  auditor  delegated   by 
him,  as  judge ;  of  the  diocesan  prosecutor,  and  a  secretary. 
The  first  step  of  the  trial  is  the  formal  charge  of  the  dioce- 
san  prosecutor.     This   charge — called  libcllus  accusationis — 


1   Instr.,  art.  ii.  :  Ib.,  art.  iv.         3  Ib.,  art.   v.         *  Il>.,  art.   vi. 

5  Ib.,  art.  vii.,  viii.       fi  Cone.   PI.   Bait.,  in.,  n.  309.          T  Instr.,  art.  ix. 
8  Ib.,  art.  x.,  xi. 


Instruction   Cum  Magnopere.  21 

should  be  clear  and  specific.  The  charges  or  statements 
contained  in  it  should  be  based  upon  reliable  and  trust- 
worthy data,  or  information  obtained  beforehand  by  the 
Bishop  or  prosecutor,  even  though  in  an  extrajudicial 
manner.  ' 

40.  The  second  step  is  the  preliminary  trial,  called  proccs- 
sns  informations.     When  the  prosecutor  has   handed    in   his 
charge,  the  Bishop,  or  auditor  delegated  by   him,  proceeds 
to   institute    the  proccssus   informations,   for  the  purpose  of 
ascertaining  whether    there    exists  probatio  legalis    against 
the  accused. 2     It  takes  place  prior  to  the  citation  of  the  ac- 
cused, as  its  object  is  to  prevent  the  accused  from  being 
cited  and  thus  disgraced,  without  sufficient    legal    proof  of 
his   guilt.      It   is    conducted    in   a   strictly  judicial,  though 
summary  manner.     Hence  it  takes  place  (a)  at  the  instance 
of  the  prosecutor,  (b)  before  the  judge  or  auditor,  (c)  who 
is  attended  by  a  secretary.     The  witnesses  are  examined 
under  oath,  apart  from  each  other. 

41.  When  this  preliminary   trial  is  over,  and   it  is  found 
that  there  is  a  sufficient  legal  proof  of  the  guilt  of  the  ac- 
cused, the  latter  is  cited  for  trial ;  otherwise  the  case  is  dis- 
missed. 3     If  the  accused,  upon  being    cited,  refuses  con- 
tumaciously to  appear,  he  is  first  declared  contumacious, 
and  then  the  trial  proceeds  in  his  absence.  *     But  if  he  ap- 
pears,  he  is  first  invited  to  make  whatever  statement  he 
desires  concerning  the  charges ;    or  also  to  make  his  excep- 
tions, etc.  5 

42.  Next   the   contestatio  delicti  takes  place  ;  that  is,   the 
prosecutor   presents    the    specifications    or   counts   of   the 
charge,  and  the  accused  admits  or  denies  them.     Then  all 
the  proofs  collected  in  the  proccssus  informations  are  com- 
municated to  the  accused.  This  is  called  legit  imatioprocessus? 

1  Instr.,  art.  xv.         2  Ib.,  art.  xvi.-xxi.         n  lb.,  art.  xxi.-xxiii. 
4  Ib.,  art.  xxiv.  5  Ib.,  art.  xxv.  fi  Ib. ,  art.  xxvi. 


22  Heading  and  Preamble  of  the 

43.  After  this,  the  accused  is  allowed  the  fullest  right  of 
defending  himself ;  that  is,  to  produce  witnesses,  documents, 
etc.,  and  also  a  full  written  defence.1 

44.  When  the  judge  or  auditor  has  admitted  all   the  wit- 
nesses and  other  proofs  produced  by  the  accused,   he  closes 
the  trial,  and  makes  a  synopsis  of  all  the  evidence  submitted 
on  both  sides. 

This  entire  proceeding,  thus  far  outlined,  is  called  compila- 
tio processes.  Where  the  curia  is  not  yet  established,  this 
compilatio  proccssus  is  made  by  the  Commission  of  Investiga- 
tion, acting  under  the  presidency  of  the  Bishop.2 

45.  After  the  close  of  the  trial  as  just  stated,  the  final  defence 
or  final  summing  up  takes  place,  in  the  following  manner: 
The  advocate  of  the  accused  is  given  full  access  to  all  the 
evidence  and  records  extant  in  the  curia  or  chancery.     He 
may   copy   these   documents  if  he    chooses.3      Then    these 
records  are  sent  to  the  prosecutor,  who,  having  examined 
them,  sums  up  the  case  against  the  accused,  in  writing.     His 
summing  up  is  communicated  to  the  advocate  of  the  accused. 
The  latter,  having  thus  before  him  the  entire  case,  prepares  a 
careful  and  exhaustive  summing  up,  in  writing.     Whereupon, 
all  the  papers,  documents,  etc.,  are  given  to  the  ordinary, 
who  fixes  a  day  for  the  sentence,  notifying  the  accused  of 
the  day  appointed.4 

46.  On  the  day  fixed,  the   sentence  is   pronounced,  and 
afterwards  an  authentic  copy  of  it  given  the  accused,  who 
can  appeal  against  it.5     The  appeal  has  a  suspensive  effect, 
except  in    the  cases  enumerated  by  Pope  Benedict  XIV. 
Const.  Ad  Militant  is.6 

47.  The  appeal  must  be  made  within  ten  days  from  the 
time  the  accused  receives  proper  notice  of  it.'     As  soon  as 
the  appeal  has  been  made,  the  judge  a  quo  sends  all  the  acts 

1  Instr..  art.  xxvii.,  xxviii.         •  Ib.,  art.  xii.          3  Ib.,  art.  xxx.,  xxxi. 
«  Ib.,  art.  xxxiii.       *  Ib.,  art.  xxxiv.,  xxxv.      6  Ib.,  art.  xxxvi.      "  Ib.,  art.  xxxvii. 


Instruction   Cum  Magnopere.  23 

of  the  case  to  the  judge  ad  qucm,  who  thereupon  commands 
the  appellant  to  appoint  an  advocate  within  thirty  days.1 
Then  the  judge  ad  qtiem — i.e.,  the  metropolitan,  proceeds  to 
adjudicate  the  case,  observing  the  same  form  of  trial  as 
outlined  in  the  Instruction  for  the  court  of  the  first  instance.2 
48.  If  the  appeal  is  made  to  the  Holy  See,  either  from 
the  judge  of  the  first  instance,  or  from  the  judge  of  the 
second  instance,  the  appellant  must  observe  the  regulations 
contained  in  the  decree  of  the  S.  C.  EE.  et.  RR.  Dec.  18, 
1835,  and  the  latter's  circular,  dated  Aug.  i,i85i.3  That 
is,  the  appellant  must,  within  the  time  fixed  by  the  Sacred 
Congregation,  appoint  an  advocate  resident  in  the  Roman 
curia  to  conduct  his  case,  and  take  the  other  steps  indi- 
cated by  us  below,  under  article  xli. 

1  Instr.,  art.  xxxviii.,  xxxix.,  xl.  2  Ib.,  art.  xli.  3  Ib.,  art.  xxxvi. 


PART  II. 

THE  INSTRUCTION,   IN  DETAIL. 

49.  The  entire  Instruction  may  be  divided  into  four  parts  : 
the  first — from  article*  i.  to  article  ix. — decrees  the  manner  of 
imposing  preventive  remedies  ;  the  second — from  article  ix. 
to  article    xxxv. — prescribes    the   trial  proper — i.e.,    mode 
of   inflicting  the    repressive  remedies  or  punishments ;  the 
third — from  article  xxxv.  to  article  xli. — lays  down  the  mode 
of  procedure  in   appeals;   the  fourth — from  article  xli.  to 
article  xlv. — regulates  several  other  matters  connected  with 
the   trial.     Accordingly  we  shall  divide  this  treatise  into 
a  number  of  chapters  to  correspond  to  this  division. — 

CHAPTER  I. 

PREVENTIVE    REMEDIES — MANNER  OF  IMPOSING  THEM. 

50.  The  mode  of  procedure,  given  in  this  first  part  of  the 
Instruction,  is  an  extrajudicial  one.     Because  the  remedies 
which  are  imposed  by  this  procedure  are  paternal  correc- 
tions rather  than  punishments  proper. 

ART.  I. 
Right  and  Duty  of  the  Ordinary  to  Inflict  Canonical  Remedies. 

I.  "  Ordinarius  pro  suo  pastorali  munere  tenetur  disciplinam  correptio- 
nemque  clericorum  ita  diligenter  curare,  ut  circa  eorum  mores  assidue 
vigilet,  ac  remedia  a  canonibus  statuta  sive  praecavendis,  sive  tollendis 
abusibus  in  clerum  aliquando  irrepentibus  provide  adhibeat." 


Preventive  Remedies — Manner  of  Imposing  Them.   25 

51.  This  article  inculcates  two  principles:  one,  that  it  is 
the  bishop's  right  and  duty  to  watch  over  the  conduct  of 
his   clergy,  and   to  prevent  or  punish  crimes  and   abuses 
among  them  ;  the  other  that  he  can  inflict  only  such  punish- 
ments as  are  established  by  the  sacred  canons.1     Both  these 
principles  are  too  well  known  to  need  any  further  explana- 
tion ;   we,  therefore,  pass  to  the  next  article. 

ART.  II. 

The    Various  Kinds  of  Remedies  or  Punishments  Established  by 
the  Sacred  Canons. 

II.  "  Haec  vero  remedia,  alia  praeventiva  sunt,  alia  repressiva.     Ilia  qui- 
dem  ad  prsepedienda  mala,  scandalorum  stimulos   amovendos,  voluntarias 
occasiones  et  causas  ad  delinquendum   proximas   vitandas   ordinantur. 
Haec  vero  eum  in  finem  constituta  sunt,  ut  delinquentes  ad  bonam  frugem 
revocentur,  ac  culparum  consectaria  de  medio  tollantur." 

52.  This  article  points  out  the  two  classes  of  remedies  or 
punishments  which  are  authorized  by  the  sacred  canons,  for 
the  prevention  or  punishment  of  offences  among  ecclesias- 
tics.    For  the  explanation  of  this  article,  we  refer  the  reader 
to  the  third  volume  of  our  Elements  of  Ecclesiastical  Law, 
which  will  be  published  at  an  early  day,  and  treat  ex  pro- 
fcsso  of  the  ecclesiastical  punishments,  both  preventive  and 
repressive,  mentioned  in  the  present  article  of  the  Instructio. 

ART.  III. 
Discretionary  Power  of  the  Ordinary  in  Inflicting  Punishments. 

III.  "  Conscientiae  Ordinarii  remittitur  cujusque  remedii  applicatio, 
canonicis    praescriptionibus   servatis  pro    casuum  ac  circumstantiarum 
gravitate." 

53.  The  law  of  the  Church  is  :  "  Poena  non  irrogatur,  nisi 
quse  quaque  lege,  vel  quo  alio  jure  specialiter  huic  delicto 

1  Cap.  i,  de  Off.  Ord. 


26  Preventive  Remedies — Manner  of  Imposing  Them. 

imposita  est."  l  In  other  words,  no  crime  or  offence  can  be 
punished,  unless  it  is  designated  by  laiu  as  punishable.  Hence 
the  Instruct™,  art.  xxxiv.,  enacts  that  the  bishop  or  vicar- 
general,  when  pronouncing  sentence  of  condemnation,  shall 
expressly  state  the  sanctio  canonica,  that  is,  the  law  of  the 
Church  which  authorizes  the  infliction  of  the  punishment  in 
the  case. 

54.  Now,  as  we  shall  show  more  fully  in  the  third  volume 
of  our  Elements  of  Ecclesiastical  Law,  there  are  two  ways  in 
which  ecclesiastical  law  designates  a  crime  as  punishable. 
First,  the  law  expressly  annexes  a  specific  penalty  to  a  certain 
unlawful  act  or  omission.     Thus  the  canon  si  quis  suadentc 
diabolo,  29,  c.  17,  q.  4,  enacts  that  if  any  one  maliciously  mal- 
treats an   ecclesiastic,     he    shall    incur    excommunication. 
Second,  the  law  states  indeed  that  an  act  or  omission  is  pun- 
ishable and  therefore  attaches  a  general  penal  sanction  to  it, 
but  does  not  express  what  specific  penalty  is  annexed  to  it, 
leaving  the  ecclesiastical  judge  free  to  inflict  whatever  punisJi- 
ment  he  may  deem  just. 

55.  Where  the  law  itself  clearly   states  what  punishment 
shall  be  incurred  for  a  certain  offence,  the    ecclesiastical 
judge  should,  as  a  rule,  inflict  this  punishment  and  no  other. 
We  say,  as  a  rule  ;  for,  where  there  are  extenuating  circum- 
stances, the  judge  can  and  should  mitigate  the  punishment. 
Where  the  law  leaves  the  judge  free  to  inflict  whatever 
punishment  seems  fair  and  equitable,  he  must  be  guided  in 
his  action  by  the  rules  of  equity,  that  is,  he  should  inflict 
such  punishments  as  will  be  regarded  fair  and  just  by  all 
good  and  intelligent  persons,  considering  the  gravity  of  the 
offence  and  its  extenuating  or  aggravating  circumstances. 

56.  Thus  it  is  evident  that  an  offence — i.e.,  a  violation  of  a 
la\v,  will  be  punishable  in  a  greater  or  less  degree,  accord- 
ing as  the  law  which  is  violated  is  of  greater  or  less  import- 

1  L.  Aliud.  131,  ff.  de  Y.  S.  (50,  16) ;   Miinchen,  Can.  Trial,  vol.  i.,  p.  97. 


Preventive  Remedies — Manner  of  Imposing  T/iem.   27 

ance  or  gravity.  Next,  the  same  offence  or  the  violation  of 
the  same  law  may  deserve  greater  or  less  punishment,  ac- 
cording to  the  circumstances  under  which  it  is  committed. 
Thus  an  offence  which  is  committed  not  merely  once,  but 
repeatedly,  and  after  due  admonition,  with  cool  premedita- 
tion and  full  malice,  is  more  punishable  than  the  same  offence 
committed — v.g.,  in  the  heat  of  passion,  on  the  impulse  of  the 
moment,  or  under  the  influence  of  fear,  and  consequently 
without  full  deliberation.  All  these  aggravating  or  extenu- 
ating circumstances  are  laid  down  in  the  sacred  canons.  ' 

57.  Again,  sometimes  there  may  be  weighty  reasons  for 
not  prosecuting  a  criminal  or  inflicting  any  punishment  at 
all.     The  punishment  might  cause  more  harm  than  good  : 
drive  the  delinquent  to  despair  instead  of  causing  him  to 
amend  ;  give  scandal,  by  making  an  offence  public  which  is 
still  secret ;  or  implicate  a  third  party — v.g.,  where  an  eccle- 
siastic has  had  illegitimate  intercourse  with  a  young  lady, 
of  good  character  and  unmarried.     For  if  the  young  lady 
should  protest  against  the  trial,  on  the  ground  that   she 
would  be  defamed  thereby  and  lose  her  chances  of  marriage, 
it  would  be  wrong  for  the  judge  to  proceed  any  farther  in 
the  case.  2     It  is  plain,  therefore,  that  it  is  left  to  the  conscien- 
tious discretion  of  the  Ordinary  to  determine  whether  or  not  it  is 
best,  in  a  given  case,  to  proceed  against  the  offender  or  to  take  no 
action  at  all.     Hence,  also,  as  we  shall  see  further  on,  the 
diocesan  prosecutor  cannot  prefer  official  charges  against  a 
supposed  delinquent,  unless  he  is  authorized  by  the  bishop 
to  do  so. 

58.  From  what  has  been  said,  it  is  apparent  that  the  Ordi- 
nary is  the  judge  as  to  the  opportuneness  of  inflicting  the 
canonical  remedies,  and  also,  generally  speaking,  as  to  the 
amount  or  degree  of  punishment.     This  is  the  meaning  of 
the     words :     "  Conscientice    ordinarii  remittitur     cujusque 

1  Mfinchen,  1.  c.,  vol.  ii.,  p.  94.  sq.  "  Droste,  p.  no. 


28  Preventive  Remedies — Manner  of  Imposing  Them. 

remedii  applicatio,    canonicis  prsescriptionibus  servatis  pro 
casuum  ac  circumstantiarum  gravitate." 

ART.   IV. 
What  are  the  Preventive  Remedies  ? 

IV.  "  Praeventiva  remediasunt  praecipue  spiritualia  exercitia,  raoni- 
tiones,  praecepta." 

59.  The  Instruct™  here  enumerates  the  chief  preventive 
remedies — namely,  spiritual  exercises,  admonitions  and  pre- 
cepts.    It   is   to  be  noted  that  these  are  the   chief,  not   the 
only  preventive  punishments.     For  a  full  explanation  of  each 
of  these  preventive  remedies,  see  our  Elements  of  Ecclesiasti- 
cal Law,  Vol.  III.,  Part  II.,  Chapter  I. 

ART.  V. 
When  and  How  are  the  Preventive  Remedies  Imposed  f 

V.  "  Antequam  vero  ea  adhibeantur,   summaria  factotum    recognitio 
praecedat  oportet :  cujus  notitiam  Ordinarius  servari  curet  ut,  si  opus  sit, 
ad  ulteriora  procedere  possit,  et  ut  auctoritati  ecclesiastics  superioris 
gradus  in  casu  legitimi  recursus  totius  rei  rationem  reddat." 

60.  The  Instructio  now  (art.  v.-ix.)  prescribes   when  and 
how  the  various  preventive   measures   are  to  be  applied. 
We  therefore  ask :   When  can  these  remedies  be  imposed  ? 
The  Instructio   itself  gives    the   answer,   in    article   ii.,   as 
follows:  Ilia  (remedia    preeventiva)   ad   prsepedienda  mala 
scandalorum  stimulos  amovendos,  voluntarias  occasiones  et 
causas    ad   delinquendum    proximas   vitandas   ordinantur." 
In  other  words,  these  remedies  can   be  imposed  upon  an 
ecclesiastic   when   he   is  guilty   of  actions   which   are   the 
proximate  voluntary  occasions  of  sin,  or  which  give  scandal. 
For  a  fuller  explanation,  see  our  Elements,  Vol.   III.,  Part 
II.,  Chapter  I. 

61.  The  next  question   is:  How  are  these   remedies   im- 
posed ?      The  Instructio  answers :  "  Antequam  vero  ea  adhi- 


Preventive  Remedies — Manner  of  Imposing  Them.   29 

beantur,  summaria  factorum  recognitio  praecedat  oportet." 
In  other  words,  before  applying  any  of  these  remedies,  the 
Bishop  is  bound  to  institute  a  summary  investigation  into 
the  facts  of  the  case.  This  is  the  authentic  explanation  of 
the  phrase  summaria  factorum  recognitio,  given  by  the  Holy 
See  itself.  For,  in  the  conferences  held  in  '  Rome,  in  No- 
vember, 1883,  between  the  Propaganda  and  our  Prelates,  one 
of  the  latter  asked  :  "  Quid  significent  verba  ilia  articuli  v. 
deve  preccdcrc  una  sommaria  verificazione  deV  fatto  ?  "  The 
Cardinals  replied  :  "  Significare  Episcopum  acquirere  debere 
certam  cognitionem  facti  seu  criminis,  de  quo  quis  accusa- 
tur ;  sed  non  esse  necessarium  ut  talis  cognitio  acquiratur 
modo  judiciali,  et  sufficere  documenta  extrajudicialia."  This 
answer  also  gives  the  aim  or  object  of  the  investigation, 
namely,  to  obtain  a  moral  certainty  of  the  existence  of  the 
offence,  or  reprehensible  acts  calling  for  the  preventive 
remedies,  lest,  otherwise,  a  person  who  is  not  guilty  of  such 
offence  or  acts  should  be  unjustly  visited  with  preventive 
punishments. 

62.  As  to  the  manner  in  which  this  investigation  is  to  be 
conducted,  it  is  as  follows :  It  should  be  made   (a)  in  a  pa- 
ternal, not  judicial  way  ;  (b)  informally — i.e.,  in  a  plain,  simple 
manner,  without  judicial  formalities ;  (c)  non  citato  nee  consti- 
tute rco  ;  (d)  with  great  prudence,  so  that  it  will  not  attract 
publicity  ;  (e)  a  written  record  of  the   whole  investigation 
shall  be  kept  by  the  Ordinary,  so  that  he  may,  in  case  the 
preventive    remedies   produce   no    effect,  proceed  even  to 
repressive  measures,  or  give  an  account  of  the  whole  matter 
to  the  higher  ecclesiastical  authority,  in  case  the  accused 
appeals  to  the  latter  against  the  preventive  measures  of  his 
Ordinary. 

63.  We    say,    so    that    he    may,    in    case    the    preventive 
remedies  produce  no  effect,  proceed  even  to  repressive  ones.     For, 
as  we  shall  show  later  on,  this  extrajudicial  investigation, 
though  not  sufficient  to  authorize  the  Ordinary  to  cite   the 


3<D  Preventive  Remedies — Manner  of  Imposing  Them. 

accused  to  appear  for  trial,  may,  nevertheless,  be  sufficient  to 
enable  him  to  take  the  first  step  of  the  trial  proper — name- 
ly, to  order  the  diocesan  prosecutor  to  draw  up  the  formal 
charges. 

64.  Whan,  upon  the  conclusion  of  the  inquiry,  the  Ordi- 
nary finds  it  certain  that  the  accused  or  suspected  ecclesias- 
tic is  guilty  of  acts  or  omissions  justifying  the  application  of 
preventive  remedies,   he  can  forthwith  proceed  to  impose 
spiritual  exercises,  or  the  canonical  admonitions,  and  also,  if 
the  latter  are  fruitless,  the  injunction  of  article  viii.    We  say, 
when  the  Ordinary  finds  it  certain  ;  for  all  canonists  agree  that 
these  remedies  are  punishments  and  can,  therefore,  be  im- 
posed only  when  there  is  a  certainty  of  guilt.     As,  however, 
the  remedies  in  question  are  chiefly  of   a  paternal  character, 
rather  than  punishments  proper,  and  do  not  transcend   the 
limits   of    the  Bishop's  paternal    authority,  it    is-  sufficient 
to   establish   the   certainty    of     the   guilt   by   extrajudicial 
proofs. 

ART.  VI. 
How  the  Canonical  Admonitions  are  Given. 

VI.  "  Canonicae  monitiones  vel  secreto  fiunt  (etiam  per  epistolam  vel 
inter  positam  personam)  ad  modum  paternae  correptionis,  vel  servata  for- 
ma legal!  adhibentur,  ita  tamen  ut  illarum  executio  ex  aliquo  actu  pateat." 

65.  Having  stated  the  conditions  that  must  precede  the 
application  of  preventive  measures,  the  Instruction  next,  in 
the  article  under  discussion,  proceeds  to  describe  the  re- 
quisites   that   must  accompany  the   canonical   admonitions, 
which  constitute  the  most  important  preventive  remedy, 
and  the  one  most  frequently  resorted  to.     How,  then,  are 
the  canonical  admonitions  to  be  given  ?     The  article  under 
discussion  answers  that  they  are  made  either  in  forma  pa- 
terna  or  in  forma  Icgali. 

66.  Here  the  question  arises  at  once,  whether,  according 


Preventive  Remedies — Manner  of  Imposing  Them.  3 1 

to  this  article,  the  Bishop  is  at  liberty  to  give  the  canonical 
warnings  in  either  of  the  above  two  ways,  as  he  sees  fit,  or 
whether  he  is  obliged  to  give  the  canonical  admonitions 
first  in  a  paternal,  and  then  in  a  legal  manner.  There  are 
several  opinions.  The  first  holds  that  he  is  free  to  select 
either  mode  ;  that  either  one  is  sufficient,  and  that  conse- 
quently both  are  not  required.  The  objection  that  may  be 
urged  against  this  opinion  is,  that  it  seems  opposed  to  the 
clearest  prescriptions  of  the  sacred  canons,  which  command 
most  emphatically  that  the  canonical  warning  shall  be  made 
only  in  a  legal  manner. 

67.  Those  who  hold  the  opinion  in  question  answer  this  ob- 
jection by  saying  that  the  preceptum  of  articles  vii.  and  viii. 
constitutes  the  canonical  warning  in  the  strict  sense  of  the 
term  ;  and  that  the  canonical  monitiones  of  article  vi.,  even 
when  made  in  a  legal  manner,  are  to  be  considered  merely 
as  fatherly  admonitions,  or  if  we  may  use  the  term,  as  semi- 
canonical   or  semi-official   warnings,    which,    however,   are 
made  obligatory,  prior  to  the  imposing  of  the  precept  or 
the  canonical  warning  proper.     (See  our  Elements  of  Ecclesi- 
astical Law,  Vol.,  III.,  Part  II.) 

68.  The  second  opinion  interprets  article  vi.  as  speaking 
disjunctively  of  two  kinds  of  admonitions — the  paternal  and 
the  canonical  proper,   and   as   imposing  the  obligation  of 
giving  the  paternal  warning  first,  and  the  canonical  after- 
wards.   The  latter  must  be  made  with  all  the  formalities  pre- 
scribed by  the  sacred  canons. 

69.  We  shall  now  briefly  describe  the  manner  in  which 
the  Ordinary  should  give  the  canonical  warnings,  whether 
paternal   or   legal,   of    which    the   present    article   speaks. 
When  the  admonition  is  given  paternally,  it  should  be  made 
in  as  informal  a  manner  as  possible,  so  that  the  person  warned 
may  plainly  see  that  it  proceeds  from  the  Bishop,  acting, 
not  as  a  judge,  but  wholly  as  a  father,  who  in  all  kindness 
and  paternal  goodness  goes  after  the  stray  sheep,  in  order 


32  Preventive  Remedies — Manner  of  Imposing  Them. 

to  reclaim  it,  in  imitation  of  our  divine  Master.1  Hence 
this  paternal  admonition  should  be  given  secretly,  charitably, 
and  prudently,  as  we  explain  in  detail,  in  the  third  volume 
of  our  Elements  of  Ecclesiastical  Law,  to  which  we  refer  the 
reader  for  further  particulars  on  this  head. 

70.  When  the  canonical  admonition  is  given  in  a  legal  or 
formal  manner,   the   following    formalities   should   be   ob- 
served— namely  (a)  it  must  be  repeated  three  times,  except  in 
case  of  urgent  necessity,  when  one  peremptory  is  sufficient ; 
(b)  it  must  be  given  in  writing ;  (V)  state  precisely  what  is  to 
be  done  or  avoided ;  (d]  lay  down  a.  suitable  and  fixed  time  for 
compliance  with  the  precept ;  (e)  mention  the  specific  punish- 
ment which  will  be  inflicted,  in  case  the  warning  is  dis- 
regarded ;  (/)  it  should  be  read  or  handed  to  the  delinquent 
in  person ;  (g)  in  the  presence  of  competent  witnesses ;  (/i)  be 
issued  by  authority  of  the  judge.     We  explain  each  of  these 
formalities  in  the  third  volume  of  our  Elements. 

71.  Here  we  merely  remark  that  whether  the  warning  is 
made  in  a  paternal  or  legal  manner,  care  should  always  be 
taken,  as  the  Instructio  enjoins,  to  give  it  in  such  a  manner  as 
to  obtain  proof  of  its  having  been  really  given. 

ART.  VII. 
When  the  Formal  Precept  is  Imposed  :  its  Tenor. 

VII.  "Quod  si  monitiones  in  irritum  cedant,  Ordinarius  jubet,  per  Curi- 
am  delinquent!  analogum  praeceptum  intimari  ita,  ut  in  hoc  explicetur, 
quid  ipse  vel  facere  vel  vitare  debeat,  addita  respectivae  poenae  ecclesias- 
ticae  comminatione,  quam  si  praeceptum  transgrediatur,  incurret.  " 

72.  The  Instruction  next  provides  that  should  the  above 
canonical  admonitions  be  disregarded  by  the  person  warned, 
the  Ordinary  shall  then,  by  means  of  his  curia,  impose  upon 
him  a  formal  precept  or  injunction.     This  command  must 
state  clearly  and  distinctly,  (a)  what  the  delinquent  should 

1  S.  Matth.  xviii.  15-18. 


Preventive  Remedies — Manner  of  Imposing  Them.   33 

do  or  avoid,  (b)  and  what  specific  punishment  he  will  incur, 
in  case  he  disobeys  the  injunction. 

73.  The  precept  can  be  imposed  only  after  the  canonical 
warnings  of  article  vi.  have  been  given  and   disregarded, 
as  is  plain  from  the  words  :     "  Quod  si  monitiones  in  irri- 
tum  cedant,  etc."     Consequently,  if  a  prelate,  without  first 
giving   the  canonical   warnings,  imposes    the  precept,  and 
subsequently  orders  the  trial  for  the  violation  of  the  pre- 
cept, the  whole  procedure  will  be  invalid,  as  we  show  in 
our  Elements,  Vol.  III.,  Part  II.,  Chapter  I. 

ART.  VIII. 
How  the  Precept  is  Communicated  to  the  Delinquent. 

VIII.  "Praeceptum  delinquent!  a  Curiae  Cancellario  coram  Vicario 
general!  injungitur,  aut  etiam  coram  duobus  testibus  ecclesiasticis  vel 
laicis  spectatae  probitatis." 

74.  The   precept   is  designed  to   obtain,  in  a  compulsory 
manner,  what    the    canonical  warnings  were  intended  and 
failed  to  bring  about  in  a  suasive  way.     It  partakes  more  of 
a  judicial  than  of  a  paternal  character.     Consequently  it   is 
a  heavier  punishment  than  the  admonitions,  and  on  that 
account   it  is  communicated  to  the  delinquent  in  a  more 
formal  and  solemn  manner.     The  present  article  describes 
these  formalities.     They   may  briefly  be  summed  up  in  the 
following  manner. 

75.  i,  The  precept  must,  on  pain  of  nullity,  be  in  writing  ; 
2,  read  or  communicated  to  the  delinquent  in  person  ;  3,  not 
by  the  Bishop  himself,  but  by  the  chancellor  or  secretary  of 
the    episcopal    curia ;      4,  in   the   presence   either   of    the 
vicar-general,  or  of   two    proper   witnesses ;    5,  an    official 
record  or  minutes  are  written  out  by  the  chajicellor  of  the 
serving    of   the  injunction  on  the  delinquent,  in  the  above- 
manner;    6,    this   record   shall   be   signed   by    all   present, 
namely,  by  the  chancellor,  the  vicar-general,   or   the    two 


34  Preventive  Remedies — Manner  of  Imposing  Them. 

witnesses,  and  also  by  the  delinquent  himself,  if  he  chooses ; 
7,  the  vicar-general  can  compel  the  witnesses  to  swear 
that  they  will  not  divulge  the  proceedings.  For  a  full  ex- 
planation of  these  formalities,  see  our  Elements,  Vol.  III.,  1.  c. 

76.  How  the  precept  is  served  on  the  delinquent,  in  case 
he  refuses  to  appear  at  the  episcopal  curia,  or  renders  him- 
self  inaccessible,  is  explained  in  the  third  volume  of  our 
Elements,  and  is  also  manifest  from  the  principles  laid  down 
in  the  second  volume  of  our  Elements,  n.    1005,   1006,    1007, 
in  regard  to  the  mode  of  serving  the  citation.      Suffice  it 
here  to  say  that  the  serving  or  delivering  of  the  precept  is 
placed  in  the  case  on  the  same  footing  with  the  delivery  of 
citations.     Consequently  the  precept,  in  the  case,  may  be 
sent  to  the  delinquent  by  registered  mail.     This  follows  also 
plainly  from  article  xiv.  of  the  Instructio,  which  prescribes 
the   manner   of   serving,  not  only  citations  proper,  but  all 
notijicationes  et  intimationes,  and   consequently  also  the   pre- 
cept, in  the  case  of  an  accused  refusing  to  appear  in  the 
•curia. 

77.  Here  it  will  be  noticed  at  once  that  the  precept,  both 
so  far  as  regards  its  tenor  and  its  service,  bears  no  small  re- 
semblance to  the  canonical   admonitions,  when    given    /// 
forma  legali.     On   this   account,    as   has   been    seen,    some 
canonists,  apparently  not  without  good  reasons,  regard  the 
praceptum  as  the  real  canonical  warning,  in  the  strict  sense 
of  the  term. 

78.  If  the  accused  will  not  even  heed  the  precept,  and   if 
he  thus  proves  himself  incorrigible,  nothing  remains  for  the 
Ordinary   but  to  lay  aside  the   extrajudicial  and    paternal 
mode   of   procedure,    outlined  in  the   articles    hitherto   dis- 
cussed, and  to  begin  judicial  proceedings  proper,  prepara- 
tory to   inflicting  repressive    punishments.     These   judicial 
proceedings  are  given  in  articles  ix.,  sq.,    and    will    be  ex- 
plained by  us,  one  by  one,  in  the  following  articles.     Here 
two  questions  present  themselves  :     First,   is  the  Ordinary 


Preventive  Remedies — Manner  of  Imposing  T/iem.  35 

always  bound  to  give  the  canonical  admonitions  and  the 
precept,  prior  to  beginning  judicial  proceedings  looking  to 
the  infliction  of  repressive  punishments?  Second,  is  the 
trial  itself  always  necessary  before  the  infliction  of  repres- 
sive punishments  ? 

79.  In  answer  to  the  first,  we  remark  that  the  repressive 
punishments  are  usually  divided  by  canonists,  who  wrote 
prior  to  the   Instruction  of  the  S.  C.  EE.  et   RR.  June  u, 
1880,  into  correctional  or  medicinal  and  punitive.      By  cor- 
rectional punishments  (pcena  medicinales,  censures)  they  gen- 
erally understand  those  which    primarily  have  in  view  the 
amendment  or  reform  of  the  offender.     By  punitive  (pcence, 
paznce   vindicative^}  they  commonly  mean  those  which   aim 
directly  at  making  the  guilty  party  suffer  and  atone  for  his 
crimes. 

80.  Now,  all  these  canonists  maintain,  and  the  sacred  canons 
expressly  enact,  that,  except  in  the  case  of  censures  which 
are  a  jure  and  latce  sent  entice,  the  Ordinary  cannot  inflict  any 
correctional  punishment  whatever  without  having  previously 
given  first  the  canonical  warning  and  then  a  trial.     Hence 
they   hold   that   the  Bishop  cannot,  in  the   case,    begin   the 
trial  until  he  has  given  the  warning.     But  they  also  hold 
that  in  imposing  vindicatory  punishments,  the  Ordinary  is 
bound  merely  to  give  the  trial  beforehand,  but  not  the  ca- 
nonical warning. 

81.  We  say  "  by  canonists  who  wrote  prior  to  the  Instruc- 
tion of  1880."     For,  according  to  article  ii.  of  this  latter  In- 
struction,  and   consequently  also  of  the  Instruction  for  the 
United  States,  all  repressive  punishments  whatever — that  is, 
not  merely  those  which  are  usually  called  medicinal,  but 
also  those  which  are  named  primitive — appear  to  be  primar- 
ily medicinal,  and  only  secondarily  vindicatory.     Thus  ar- 
ticle ii.  of  the  Instructio  says  :    "  Haec  vero  "  (remedia  repres- 
siva)  "  eum  in  finem  constituta  sunt,  ut  dclinquentcs  ad  bonam 
frugem  revocentur."1    If  this  be  true,  that  is,  if  all  repressive 


^6  Preventive  Remedies — Manner  of  Imposing  Tliem. 

punishments  are  primarily  medicinal,  it  follows  that  not  only 
those  repressive  punishments  which  are  called  medicinal,  but 
also  those  which  were  formerly  termed  vindicatory,  must 
be  preceded,  not  only  by  the  trial,  but  also  by  the  canonical 
warnings  and  the  precept ;  that,  therefore,  excepting  in  the 
case  of  punishments  which  are  a  jure  and  latce  scntcntice,  the 
Ordinary  cannot  begin  judicial  proceedings  until  he  has 
first  given  the  warnings  and  the  precept. 

82.  Of  course,  in  those   cases  where  the  law  allows  the 
Ordinary    to  inflict  suspension  ex   informata  conscicntia,  no 
previous     trial,   and    consequently   no   previous   canonical 
warnings  or  precept  are  required.     Thus  the  latest   Instruc- 
tio  of  the  S.  C.  de  Prop.  Fide,  on  suspensions  ex  informata 
conscientia,  dated  Oct.  20,  1884,  and  embodied  in  the    TJiird 
Plenary  Council  of  Baltimore  (p.  298)  enacts,  in  §  2  :  Ideoque 
ad  ejusdem  (susp.  ex  inf.  consc.)  impositionem  non  requirun- 
tur  nee  formae  judiciales,  nee  canonical  monitioncs"    However, 
this  same  Instruction,  §  9,  leaves  it  to  the  prudent  discre- 
tion of  the  Bishop  to  give  the  accused  paternal  admonitions, 
if  he  sees  fit,  prior  to  inflicting  suspension  ex  inf.  conscicntia. 

83.  This  view  appears  to  be  the  one  taken  by   the    Third 
Plenary  Council  of  Baltimore,    held  in  1884  (n.  300,  309,  3101 
and  by  commentators  of  the  Instruction  of  1880,  and  is  cer- 
tainly in  full  harmony  with  the  urgent  recommendations  of 
the  Council  of  Trent,  as  we  show  in  the  tliird  volume  of  our 
Elements.     It  also  accords  well  with  the  spirit  of  mildness 
and  clemency  which  pervades  the  laws  of  the  Church,  and 
which  requires   that   warnings  shall  precede  severer  meas- 
ures or  punishments  proper.     As  to  the  second  question, 
we  shall  answer  it  in  the  next  article. 


CHAPTER   II. 

THE     CANONICAL    SUMMARY    TRIAL,    OR  MODE    OF    PROCEED- 
ING  WHICH  MUST  BE   OBSERVED   IN   INFLICTING 
REPRESSIVE  PUNISHMENTS. 

ART.   IX. 

Is   a   Trial  Always  Necessary  Before  a  Repressive  Punishment 
can  be  Inflicted  ? 

IX.  "  Quod  vero  pertinet  ad  remedia  repressiva  seu  pcenas  animad- 
vertant  Ordinarii  in  suo  pleno  vigore  manere  remediura  extrajudiciale  ex 
informata  conscientia  pro  occultis  reatibus  a  S.  Concilio  Tridentino  con- 
stitutum,  Cap.  I.  sess.  14  de  Reform." 

84.  Having,  in  the  previous  articles,  laid  down  the  formali- 
ties  to   be   observed   by  Ordinaries  when  they  administer 
preventive  or  paternal  corrections,  the  Instruction,  in   the 
present  and   succeeding   articles,   outlines   the   manner   in 
which  Ordinaries  are  bound  to  proceed,  when  they  wish  to 
inflict  repressive  punishments.   As  we  have  seen,  the  Bishop 
is  bound  first  to  give  the  canonical  warnings  and  next  the 
precept.     If  the  delinquent  remains  obstinate  and  persists 
in  his  evil  course,  notwithstanding  the  admonitions  and  pre- 
cept, the  Ordinary  can  then  order  the  trial,  with  a  view  to 
inflicting  repressive  punishments. 

§    i.  Procedure  " Ex  Informata  Conscientia" 

85.  Here,  then,  it  is  proper  to  take  up  the  second  question 
put   above,  namely :  Is  the  trial,  as  outlined  in  the  Instruc- 
tion, always  necessary  before  repressive  punishments  can  be 
inflicted?     It  is,  except  in  the  one  case  established  by  the 


38      Mode  of  Proceeding  which  must  be  Observed 

Council  of  Trent,  sess.  xiv.,  Cap.  I.  de  Ref.  This  is  clearly 
the  meaning  of  article  ix.,  now  under  consideration.  For  the 
Instruction,  as  already  shown  from  its  title  or  heading,  pre- 
scribes that  the  trial,  or  judicial  procedure,  outlined  in  it, 
must  precede  all  repressive  punishments.  Moreover,  in 
order  to  avoid  any  possible  misunderstanding,  the  Sacred 
Congregation,  in  the  present  article,  declares  that  the  Tri- 
dentine  law  (sess.  xiv.,  Cap.  I.  de  Ref.),  which  authorizes 
Bishops  to  inflict  suspension  without  a  trial,  or,  as  they  say, 
ex  informata  conscicntia,  in  certain  exceptional,  extraordinary 
and  urgent  cases,  and  even  then  only  when  the  crime  is 
occult,  is  not  abolished  by  the  Instruction,  but  remains  in 
full  force.  Hence,  according  to  the  rule,  exceptio  finnat 
rcgulam,  the  meaning  of  article  ix.  is,  that  in  the  one 
case  given  by  the  Council  of  Trent,  the  Bishop  can  in- 
flict a  repressive  remedy — namely,  suspension — without  a 
previous  trial ;  but  that,  in  all  other  cases,  he  must  give  the 
trial  before  he  can  inflict  a  repressive  punishment.  For  a 
full  and  exhaustive  treatment  of  sentences  ex  informata  con- 
scientia,  see  our  Elements  of  Ecclesiastical  Law,  Vol.  II.,  n. 
1279,  sq.  See  also  the  latest  Instructio,  S.  C.  de  P.  F.,  Oct. 
20,  1884,  in  the  C.  PI.  Bait.,  iii.,  p.  298. 

86.  This  view  is  clearly  set  forth  by  the  Third  Plenary 
Council  of  Baltimore,  held  in  1884,  n.  310,  and  is  in  full  ac- 
cord with  the  recent  decisions  of  the  Holy  See,  and  the 
common  teaching  of  canonists.  Thus  the  S.  C.  de  P.  F.,  in 
its  Instruction  to  the  Vicar-Apostolic  of  Cochin  China) 
dated  June  ist,  1775,  says:  "  In  primis  tibi  pro  regula  tenen- 
dum  est,  quod  omnia  jura  vetant  ne  ad  criminum  puniti- 
onem  deveniatur,  nisi  priiis  per  probationes  a  lege  prcescriptas 
constet  de  delicti  pcrpctratione"  *  Consequently  this  Sacred 
Congregation,  in  the  same  Instruction,  advises  the  vicar- 
apostolic  to  proceed  paternally  and  extrajudicially,  that  is, 

1  Collectanea    S.  Sedis,  p.  251. 


in  Inflicting  Repressive  Punishments.  39 

to  inflict  merely  paternal  remedies  and  not  punishments 
proper,  even  for  the  crime  of  solicitation,  wherever,  owing 
to  the  condition  of  the  country,  he  cannot  give  the  accused 
a  trial,  "cum,"  as  the  Instruction  continues,  " justitia  non 
patiatur,  ut  pcenas  infligantur  adversus  reos  de  quorum 
crimine,  tali  pacto"  (i.e.,  by  trial)  "  adhuc  sufficienter  non 
constat."  l 

87.  In  like  manner,  it  is  the  general  teaching  of  canonists 
that  Ordinaries  have,  indeed,  the  power  to  proceed  extrajudi- 
cially — i.e.,   without  a  trial,   when  there  is  question  of  ad- 
ministering a  paternal  correction  or  a  preventive  remedy, 
but  that  an  ecclesiastical  trial,  at  least  summary,  is  always 
required  (except  in  the  one  case  established  by  the  Council 
of   Trent,  sess.  xiv.,  C.  I.   de   Ref.),  on  pain  of  nullity    of 
the  punishment,  before  an  ecclesiastical  punishment  proper, 
whether  temporal  or  spiritual,  correctional  or  vindicatory, 
or  a  grave  disciplinary  correction  can  be  inflicted. 2     See 
our  Elements,  Vol.  II.,  n.  1281,  sq. 

88.  Here     it   may    be   objected    that    besides    the    case 
given  by  the  Council  of  Trent,  sess.  xiv.,  C.  I.  de  Ref.,  there 
is  another  case  where  no  trial  is  required,  namely,  when  the 
crime  is    notorious.       In  reply  to  this  objection,  it  may  be 
said  that,  according  to  the  general  teaching  of  canonists,  it 
is  always  advisable,  nay,  at  least  practically  speaking,  neces- 
sary, as  a  rule,  to  give  the  trial  also  in  notorious  cases.    Thus 
the    Tliird  Plenary  Council  of  Baltimore,  n.  310,  says  :     "  Ani- 
madvertant  an  tern  episcopi,  hoc  uno  casu  excepto  (scilicet 
suspensionis  ex  inf.  consc.)  nullam  pcenam   repressivam  ad- 
hiberi  debere,  nisi  prasvio  processu  judicial!,  ita  ut  etiam  in 
causis,  quse  dicuntur  ex  notorio,  omnino  consultius  sit  pro- 
cessum  summarium  de  delicti   notorietate   instruere,  ante- 
quam   pcena    infligatur."      We   shall,    however,    treat   this 


1  Collect.  S.   Sedis,  p.  252. 

2  Prsel.   S.  Sulp.,  vol.  i.,  n.  279;     Analecta,  J.  P.,   ser.    13,   1874. 


40       Mode  of  Proceeding  which  must  be  Observed 

question  more  fully  at  the  end  of  this  article.     See  also  our 
Elements,  V "ol.  II.,  n.  1263,  sq. 

89.  Lastly,    we  observe,  the  present  article  (ix.)  teaches 
that  the  power  to  proceed  ex  informata  conscicntia  can  be 
made  use  of  only  when  the  crime  is  occult.     This  is  also  ex- 
pressly decreed  in  the  recent  Instruction  supra  suspcnsionibus 
et  inf.  consc.,  issued  by  the  S.  C.  de  P.  F.,  Oct.  20,  1884,  for 
the  United  States  and  missionary  countries  in  general.     This 
Instruction  says  :  "  Suspension!  ex  informata  conscientia  jus- 
tam  et  legitimam  causam  prsebet  crimen,  seu  culpa  a  sus- 
penso   commissa.      Hasc   autem   debet   esse   occulta,   et   ita 
gravis,  ut  talem  promereatur  punitionem."  T 

90.  Therefore,    as   we  note  already   in   our  Elements    of 
Ecclesiastical  Law,  Vol.  II.,  n.  1292,  sq.,  the  opinion  of  Bouix,  * 
Craisson, s  Stremler, 4  Santi, 6  and  other  canonists,  who  hold 
that  suspensions  can  be  inflicted  ex  informata  conscientia,  also 
for  public  crimes,  at  least  where  it  would  be  inexpedient  to 
give  the  accused  a  trial — v.g.,  on  account  of  the  scandal   to 
the   faithful   which  might  be  occasioned   by  a   trial,   is   no 
longer  tenable. 

91.  Now,  when  is  a  crime  considered  occult,  so  that  sus- 
pension can  be  inflicted  for  it  extrajudicially,  or,  as  they  say, 
ex  informata  conscientia  ?     The  above   Instruction  of  Oct.  20, 
1884,  gives  the  authentic  answer  in  §  7,  thus  :  "  Ad  hoc  autem 
ut  (culpa)  sit  occulta  requiritur,  ut  neque  in  judicium,  neque 
in    rumores   vulgi    deducta    sit,    neque    insuper    ejusmodi 
numero  et  qualitati  personarum  cognita  sit,  unde  delictum 
censeri  debeat  notorium." 

92.  Consequently  a  crime    is    considered  public  and  no 
longer  occult  (a)  when  it  has  once  been  brought  before  the 
judicial  tribunal   or  curia   of  the    Bishop,  or  of  the  secular 
courts — v.g.,    when  an   accusation    or   complaint   has    been 


1  Instr.,  cit.,  §  6.  a  De  Jud.,  vol.  ii.,  p.  325,  sq.  3  Man.,  n.  6017. 

4  Des  Peines,  p.  316,  323.  5  Prrel.,  1.  5,  t.  i.,  n.  18. 


in  Inflicting  Repressive  Punishments.  4 1 

judicially  made  either  by  the  diocesan  prosecutor  or  other 
person  ;  (b]  when  there  is  a  rumor  about  it  among  the 
people  ;  (c)  when  it  is  known,  for  instance,  to  more  than 
five  persons,  or  even  only  to  one  who  is  talkative  and  indis- 
creet— v.g.,  to  a  garrulous  woman.  For  a  crime  known  to 
this  number  or  quality  of  persons  is  already  regarded  as 
public  and  notorious.  See  our  Elements  of  EccL  Law,  Vol. 
II.,  n.  1309. 

93.  From  this  decision  of  the  Holy  See,  it  will  be  seen 
that  the  opinion  of  those  canonists  who  teach  that  a  crime 
which  is  indeed  public  in  itself,  can  nevertheless  be  regarded 
as  occult,  when  it  is  either  inexpedient  to  institute  a  trial — v.g., 
because  of  possible  scandal,  or  when  it'  is  difficult  or  even 
impossible  to  prove  the  crime  juridically — v.g.,  because  the 
witnesses  refuse   to   testify,  is   now   altogether    untenable. 
For   the  Instruction  of  Oct.  20,   1884,  expressly  says,  in  n. 
13:     "  Casterum  ex  quo  istiusmodi  pcena  est  remedium  om- 
nino  extraordinarium,  pras  oculis  habeant  Prselati  quod  repre- 
hensibilis  foret  episcopus,  si  in  sua  synodo  declararet,  se  de- 
inceps  ex  privata  tantum  scientia  cum  pcena  suspensionis  a 
divinis  animadversurum  in  clericos,  quos  gravites  deliquisse 
compererit,  quamvis  eorum  delictum  nonpossit  inforo  externo 
concludentcr  probari,  aiit  illud  non  expediat  in  aliorum  notitiam 
dc  due  ere" 

94.  However,  when  a  person  is   guilty  of  several  crimes, 
some  of  which  are  public,  and  others  occult,  the  Bishop  can 
inflict  suspension  ex  infonnata  comcientia  for  the  one  or  sev- 
eral crimes  which  are  occult,  even  though  the  others  are 
public.     The  same  holds  where  the  crime  was  occult  before 
the  suspension  and  became  public  only  after  it.     Thus  the 
above   Instruction  of  Oct.  20,   1884,  §  8,  enacts:     "Verum 
tenet  etiam  supensio  si  ex  pluribus  delictis   aliquod  fuerit 
notum   in  vulgus ;  aut  si  crimen,  quod  ante   suspensionem 
fuerat  occultum,  deinceps  post  ipsam    fuerit  ab  aliis  evul- 
gatum."     The   Instruction,  §  5,  moreover,  expressly  states 


42        Mode  of  Proceeding  which  must  be  Observed 

that  suspensions  ex  informata  conscientia  cannot  be  inflicted 
in  perpetuum.     See  our  Elements  of  Eccl.  Law,  Vol.  II.,  n.  1316. 

95.  Finally,  the  mere  fact  that  a  crime  is  occult  does  not,  of 
itself,  warrant  the  procedure  ex  informata  conscientia.     For 
even  occult  crimes  should  be  punished  only  by  trial,  save 
when  there  are  very  grave  and  urgent  reasons  for  not  insti- 
tuting a  trial.     See  our  Elements,  Vol.  II.,  n.  1306,  1307.     This 
is   clearly   indicated   by   the   S.    C.  de    Prop.    Fide,    in   its 
response  to  the  Dubia  regarding  the  Instruction  of  July  20, 
1878,  and  also  in  the  recent  Instruction  of  Oct.  20,   1884. 
Thus  the  latter  Instruction  says  in  n.  13  :  "  Caeterum  ex  quo 
istiusmodi  poena  est  remedium  omnino  extraordinarum,  etc." 

96.  Lastly,  the  Instructio  of    Oct.  20,   1884,    enacts,    §   6: 
"  Suspension!  ex  informata  conscientia  justam  ac  legitimam 
causam    praebet  crimen,    seu  culpa  a  suspense   commissa. 
Hasc  autem  debet  esse  occulta,  et  it  a  gravis,  ut  talem  pro- 
mereatur  punitionem."     Hence  censures  or  suspensions  ex 
informata   conscientia   cannot    be   inflicted,  even    for  a  short 
time,  or  in  a  mild  form  for  light  or  venial  offences. 

§  2.     Procedure  " Ex  Notorio" 

97.  We  have  said  above  that,  at  least  practically  speaking, 
a  trial  is,  as  a  rule,  necessary  also  in  notorious  crimes,  before 
a  punishment,  censure,  or  grave  disciplinary  correction  can 
be  inflicted  for  such  crimes.     In  order  to  understand  this 
whole  matter  more  fully,  we  shall  here  explain  the  procedure 
ex  notorio,  as  laid  down  in  the  sacred  canons,  under  these 
three  heads:     i.  What  are  notorious  crimes?     2.  What  is 
the  mode  of  inflicting  punishments  for  notorious  crimes  ? 
3.  What   are  the  legal  or  canonical  remedies  against  this 
procedure  or  mode  of  inflicting  punishment? 

98.  I.    What  are  notorious  crimes?     A  crime  is  notorious 
either  by  notoriety  of  law  (iwtorictas  juris)  or  by  notoriety 
of  fact  (notorietas  facti).     Here  we  speak  merely  of  crimes 
notorious  bv  fact,  and  not  of  those  which  are  notorious  bv 


in  Inflicting  Repressive  Punishments.  43 

law.  For  the  procedure  ex  notorio  applies  only  to  those 
crimes  which  are  notorious  by  notorietas  facti  and  not  to 
those  which  are  notorious  by  notorietas  juris?  Our  Elements, 
Vol.  II.,  n.  1253,  sq. 

99.  Now,   a   crime  is  notorious  by  fact  when  it  is  per- 
petrated in  the  presence  and  sight  either  of  the  whole  or  at 
least  of  the  greater  part  of  the  community,  neighborhood, 
parish  or  place,  so  that  it  can  be  in  no  wise   concealed   or 
denied.     Such,  for  instance,  was  the  crime  of  the  incestuous 
Corinthian  mentioned  by  St.  Paul,  I.  Cor.  v.  i,  5.     See  our 
Elements,  Vol.  II.,  n.  1254. 

100.  A  crime  may  be  notorious  by    fact  in  three  ways, 
namely,  permanently,  interruptedly,  and  transiently.     It  is 
notorious  permanently    (iwtorium  facti  permanentis)  when  it 
exhibits  itself  notoriously  and  has  a  continued  existence,  so 
that  it  can  be  seen  by  all,  not  merely  once  or  several  times, 
but   constantly. 2     A   notorious   crime   of  this   kind  is,   for 
instance,  that  of  a  person  who  openly  keeps  a  concubine  in 
his  house,  eats  and  sleeps  with  her,  and  has  children  by  her.3 
The    crime   is    notorious    interruptedly    (iwtorium   facti  in- 
tcrpolati]    when   it  is  (a)  perpetrated   notoriously    (b)  and 
repeated  a   number   of   times — v.g.,  when  a  person   curses 
notoriously  and  often — but  yet  is  not  committed  continually 
and  permanently.     The  crime  is  notorious  transiently  (iioto- 
rinm  facti  transeuntis  scu  momcntanci}  when  it  is  committed 
indeed  in  the  sight  of  the  entire  or  greater  part  of  the  com- 
munity, once,  or  perhaps  twice,  but  has  no  further  continuity. 

101.  However,  in  order  that  a  crime  may  be  notorious, 
m  the  canonical  sense,  and  punishable  ex  notorio,  it  must  be 
notorious  not  only  materially,  but  also  formally.     In  other 
words,  not  only  the  act  itself  or  offence  must  be  notorious, 
but  also  the  malice  of  the  offender.     That  is,  the  delinquent 
must  not  merely  perpetrate  the  crime  in  the  sight  of  the 

• 

1  Munchen,  Can.  Trials,  vol.  i.,  p.  447,  n.  3.     2  Schmalzg.,  1.  5,  t.  i.,  n.  2.     3  Ib- 


44       Mode  of  Proceeding  which  must  be  Observed 

community,  but  he  must  perpetrate  it  in  such  a  manner  that 
it  can  be  and  is  readily  seen  by  all  that  he  has  committed 
the  offence  knowingly,  willfully,  and  maliciously?  See  our 
Elements,  1.  c.,  n.  1262. 

102.  II.  Mode  of  procedure  against  notorious  crimes. — The 
law  of  the  Church,  as  laid  down  in  the  sacred,  canons  and 
explained  by    canonists,   is   that  the  Ordinary  can    punish 
notorious  crimes — whether  they  be  notorious  permanently, 
interruptedly,  or  transiently — without  a  previous  trial,  pro- 
vided, however,  it  is   certain,  beyond  any  doubt '  whatever, 
that  they  are  really  and  truly  notorious,  not  only  materially, 
but  also  formally.     See  our  Elements,  Vol.  II.,  n.  1259. 

103.  We  say •,  provided  it  is  certain,  etc.;  for,  while  the  crime 
itself  need  not  be  proved,  its  notoriety  being  its  proof,  the 
fact  that  it  is  really  notorious,  and  that  both  materially  and 
formally   is   a   question    of  fact,   and    must    therefore    be 
legitimately  proved  like  any  other  fact — -e.g.,  by  at  least  two 
witnesses.     Nay,  the   fact   of   notoriety    must  not  only   be 
proved  legitimately,  but  must  be,  moreover,  juridically  -de- 
clared ;  that  is,  the  judge  must  at  least,  as  a  rule,  also  declare 
by  judicial  sentence  that  the  crime  is  really  notorious,  both 
formally  and  materially.     See  our  Elements,  1.  c.,  n.  1260,  1261. 

104.  We  have  just  said,  at  least  as  a  rule.     For  Schmalz- 
grueber   holds   that   a  sententia   notorii  dcclaratoria   is    not 
necessary,  (a)  when  the  delinquent  does  not  deny  that  the 
crime  is  notorious,  (b)  when  the  crime  is  notorious  perma- 
nently. *     Others,  however,    deny    this,  and    teach  that   the 
juridical  declaration  of  the  existence  of  notoriety  is  always 
obligatory,  on   pain  of  nullity  of  the  proceedings.  *     What- 
ever may  be  said  on  this  question,  all  canonists,  without  ex- 
ception, say  that  it  is  safer  for  the  judge  to  issue  this  declara- 
tion, even  in  the  two  cases  excepted  by  Schmalzgrueber.  4 


1  Schmalzg.,  1.  c.,  n.  15.  *  Ib.,1.  5,  t.  i..  n.  u. 

3  Reiff.,  1.  5,  t.  i.,  n.  264.  <  Schmalzg.,  1.  c. 


in  Inflicting  Repressive  Punishments.  45 

105.  We    have  seen  that  the  procedure  ex  notorio  can  be 
adopted  only  when  it  is  certain,  beyond  any  doubt,  that  the 
crime  is  really  notorious,  both  materially  and  formally.    This 
is  admitted  by  all  canonists.     Thus  Schmalzgrueber *  says  : 
"  Quando  aliqua  potest  reo  competere  defensio,  vel  dubium 
sit  an   non  competat,  vel  possit  competere,   tune  omnino 
necessaria  foret  citatio  (citation   for  trial,  not  merely  for 
sentence),  ut   communiter    ab  omnibus   receptum  testatur 
Farinac."     Hence,  wherever  there  is  any  doubt  whether  the 
crime  is  notorious  materially  and  formally,  a  trial  must  be 
given   to   the   supposed    delinquent.3     Consequently,    also, 
when  the  supposed  delinquent  objects  that  his  alleged  of- 
fence  is  not  notorious  in  both  respects,  and  gives  plausible 
reasons  for  his  objection,  he  must  be  given  a  trial. 

1 06.  Now,  it  is  a  most  difficult  thing  to  show  or  prove  legit- 
imately that  a  crime  is  really  notorious,  both  materially  and 
formally,  at  least  in  the  case  of  the  notorium  facti  transeuntis 
or  even  intcrpolati.     For  a  person  may  notoriously  commit 
an  offence — v.g.,  he  may  become  drunk  before  a  large  num- 
ber of  persons ;    yet  he   may    have   fallen   into   the   crime 
without  moral  responsibility  ;  thus  he  may  have  been  tem- 
porarily insane,  or  he  may   have  acted  under  fear, — misap- 
prehension, etc.     This  difficulty  is  one  of  the  reasons  why 
the  procedure  has  fallen  into  disuse. 

107.  We  say,  at  least  in  the  case  of  notorium  facti  tran- 
scuntis,  etc.    For,  in  the  case  of  the  notorium  facti  permanentis, 
this  difficulty  is  not  so  great,  as  is  plain.      Hence   Miinchen 
also  holds  that  the  mode  of  procedure  ex  notorio — i.e.,  the  in- 
fliction of  punishment  without  a  previous  trial,  applies  only 
to  crimes  which  are  notorious  facti  permanentis? 

108.  It  is  also  owing  to  these  difficulties  that  all  canon- 
ists, without  exception,  strongly  advise,  that  no  matter  how 
completely  and  plainly  notorious  a  crime  may  appear  to  be, 

• 

1  Schmalzg.,  1.  c.,  n.  10.  -  Ib..  n.  10.  3  Miinchen,  1.  c.,  vol.  i.,  p.  447. 


46        Mode  of  Proceeding  which  must  be  Observed 

punishment  should  not  be  inflicted  upon  the  delinquent 
without  a  previous  trial.  Thus  Schmalzgrueber  writes  : 1 
"  Ideo  honestius  tutiusque  aget,  si  qualecunque  delictum 
videatur  esse  notorium,  super  ejus  notorietate  recipiat  depo- 
sitiones  testium.  .  .  imo  non  facile  omittet  ipsam  etiam  citati- 
onem  (to  appear  for  trial)  et  monitionem  rei."  Reiffenstuel 
likewise  teaches :  "  Doctores  communiter  et  praxis  sua- 
dent,  ne  judex  aliquem  etiam  notorie  delinquentem,  sine 
citatione  et  sententia  condemnet ;  turn  quia  citatio,  quse 
principaliter  eo  tendit,  ut  reus  prius  audiatur,  et  defen- 
dere  se  valeat,  videtur  esse  juris  naturalis  ;  turn  quia  multa 
dicuntur  notoria,  qiice  non  sunt."2 

109.  In  like  manner  Stremler  writes  :  "  Du  reste,  suivant 
1'avis  de  tous  les  canonistes,  lors  meme  que  le  delit  serait 
notoire  mate'riellement  tc  formellement,  le  juge  agira  sagement 
en  se  conformant  a  toutes  les  regies  de  la  procedure,  afin 
d'eviter  toute  erreur,  toute  injustice  qui  pourrait  resulter  de 
leur  omission.  Ainsi  il  doit  citer  le  coupable,  entendre  les 
temoms,  porter  la  sentence  par  ecrit  etc.,  parce  que  souvent 
comme  le  disent  les  saints  canons,  bien  des  choses  paraissent 
notoires  qui  en  realite  ne  le  sont  pas.  Telle  cst  la  pratiqiie 
ordinaire  et  universelle  de  tous  les  tribunaux,  et  on  ne  saurait 
s'en  affrancJiir  sans  thne'ritt.  Tout  ce  qui  vient  d'etre  dit  des 
delits  notoires  doit  aussi  s'appliquer  aux  delits  flagrants.  Le 
droit  ancien,  touchant  ces  deux  especes  de  delits,  est  tombe  en  de- 
suetude et,  aufourd'hui,  Us  sont  assimiles  aux  a  litres  delits."  3 
Craisson  (n.  600)  also  writes :  "  Prudenter  aget  judex  si, 
etiam  in  notoriis,  consuetas  judiciorum  regulas  observet." 

no.  III.  Remedies  against  sentences  "ex  notorio" — While, 
as  we  have  seen,  by  the  strict  letter  of  the  law,  no  previous 
trial  is  required  for  punishing  notorious  crimes,  and  conse- 
quently the  offender  need  not  be  cited  for  trial,  yet  he 
must,  at  least  as  a  rule,  be  cited  to  hear  the  sentence  of  con- 

1   L.  c.,  n.  16.  2  Reiff.,  1.  5,  t.  i.,  n.  266.  3  Stremler,  des  Peines,  p.  82. 


in  Inflicting  Repressive  Punishments.  47 

damnation  pronounced  against  him,  and  to  show  cause  why 
it  should  not  be  pronounced.  For  the  formula  of  this  sen- 
tence, see  our  Elements,  Vol.  II.,  n.  1261. 

111.  We  say,  at  least  as  a  rule ;  for  Schmalzgrueber,  1.  c., 
n.  10,  excepts  the  case  where  the  delay  occasioned  by  the 
citatio  ad  sententiam  would  redound  to  the  prejudice  of  the 
public  by  reason  of  the  scandal  that  would  follow.     How- 
ever, Reiffenstuel  (1.  c.,  264)  and  others  do  not  admit  this 
exception.     Whatever  may  be  said  as  to  the  necessity  of  al- 
ways citing  the  accused  to  hear  the  sentence,  it  is  certain 
that,  before  inflicting  punishment,  the  judge  must  always 
pronounce  sentence  of  condemnation  and  communicate  it 
properly  to  the  delinquent. 

112.  Q.  What  are  the  canonical  remedies  against  sentences 
ex  notorio  ? 

A,  There  is  no  suspensive  appeal  against  the  sentence 
of  condemnation  in  notorious  crimes, '  provided  the  sen- 
tence expressly  states  that  the  punishment  is  being  inflicted 
upon  the  delinquent  for  being  guilty  of  notorious  crimes.  * 

113.  We  say,  suspensive  appeal ;  for  it  is  allowed  to  appeal 
in  dcvolntivo  against  such  sentences.  3     We  say,  moreover, 
"sentence  of  condemnation;"  for  an  appeal,  even  in  suspen- 
sive, lies  against  the  superior's  declaration  that   the  crime 
is  notorious. 4     Hence,  where  a  person  appeals  against  the 
sentence   ex  notorio  and   alleges  in  his  appeal  a  reasonable 
cause,  tending  to  show  that  it  is  doubtful  whether  the  crime 
is  notorious,  either  materially  or  formally,  the  appeal  has  a 
suspensive    effect.  5     We  say,  also,  provided  the  sentence  ex- 
pressly states,  etc. ;  for  if  the  ecclesiastical  judge  fails  to  make 
the  above  statement  in  his  sentence,  an  appeal  in  suspensive 
lies  against  his  sentence.  * 

1  Cap.  Consuluit  14,  de  app.    (II.  28) ;   Barhosa,   1.  2,  t.  28,  in  cap.  Consuluit, 
cit.,  n.  i,  2,  3. 

2  Schmalzg.,  1.  c.,  n.  12.  3  Barbosa,  1.  c.,  n.  4.  4  Reiff.,  1.  c.,  n.  261. 
B  Barbosa,  1.  c.,  n.  6.                      6  Schmalzg.,  1.  c.,  n.  12. 


48       Mode  of  Proceeding  which  must  be  Observed 

1 14.  Again,  where  the  punishment  inflicted  ex  notorio  is 
considered  too  severe,  it  is  allowed  to  appeal  in  suspensrco 
against  such  excessive  severity.     Moreover,  it  is  allowed  to 
appeal  in  suspensive  in  merely  manifest  is  ;   for  manifest  a  and 
notoria  are  not  the  same  thing.  '      Finally,  an  appeal  in  sus- 
pensivo  lies  in  the  notorium  probationis,  in  the  notorium  juris, 
and  in  the  notorium  per  famam.  2 

115.  From  all  the  above,  it  will  readily  be  seen  that  the 
law  of  the  Church,  while  allowing  of  punishments  to  be  in- 
flicted  ex  notorio,  and    without   a   previous  trial,    as    unani- 
mously interpreted  by  canonists,  also  hedges  in  this  power 
with  so  many  limitations  and  restrictions,  and  requires  so 
many  conditions,  in  order  that  a  crime  may  be  truly  and 
really  notorious,  that,  practically  speaking,  it  becomes  very 
difficult  and  unsafe  for  the  Ordinary  to  adopt  the  procedure 
ex  notorio  in  any  given  case.     Hence  all  canonists  strongly 
advise,  as  we  have  seen,  that  it  is  always  better  and  safer 
for  the  Ordinary  to  give  the  accused  a  previous  trial,  before 
inflicting  punishment  upon  him,  even  when  the  crime  seems 
notorious  in  every  way. 

ART.  X. 

Form  of  Trial. —  Various  Classes  of  Crimes  u'hick  arc   Triable 
and  Punishable. 

X.  "  In  actione  criminali  vel  ob  praecepti  inobservantiam,  vel  ob  com- 
munes reatus,  vel  ob  ecclesiasticarum  legum  transgressiones,  processus 
summarie  et  sine  strepitu  judicii,  servatis  semper  in  tola  sua  substantia 
justitiae  regulis,  conficiatur." 

116.  In  the  foregoing  article,  we  have  seen  that  a  trial 
must  precede  all  repressive  punishments,  except  in  the  case 
stated.     Now,  these  punishments  can  be  inflicted  only  for 
crimes,  as  is  evident  from  the  rule :    Sine  culpa,  nisi  snbsit 
causa,  non  est  aliquis punicndus.    Reg.  XXIII.,  de  Reg.  Jur.  in 

1   liarbosa,  1.  c.,  n.  9.  2  Ib.,  n.  8. 


in  Inflict  ing  Repressive  Punishments.  49 

6°.  See  our  Elements,  Vol.  III.,  Part  I.,  Chapter  I.  The 
present  article  (a)  indicates  the  various  kinds  of  offences  for 
which  ecclesiastics  (the  Instruction  lays  down  the  mode  of 
procedure  against  ecclesiastics,  not  laics]  can  be  placed  on  a 
criminal  trial,  and  if  found  guilty,  punished  ;  (b)  states  that 
the  trial  is  to  be  conducted  in  a  summary  manner. 

§  i.  Different  Classes  of  Crimes  Punishable. 

117.  As   to   the   different  classes  of  crimes,  the  present 
article  points  out  three  :  (a)  transgression  of  the  injunction, 
which  we  have  discussed  above,  under  articles  vii.  and  viii. ; 
(b)   common    crimes  (rcatus   communes) ;  (c]  violation  of  ec- 
clesiastical  laws.     We  shall   briefly  explain   each  of   these 
kinds  of  offences. 

1 1 8.  I.   Common    crimes,   "rcatus  communes,  delict  a  commit 
nia."     Canonists  usually  divide  crimes,  by  reason  of  the  per> 
sons  by  whom  they  are  committed,1  into  (a)  dclicta  communia 
or  reatus  communes,  namely,  those  which  can  be  committed 
alike   by  ecclesiastics  and  laics — v.g.,   drunkenness,   immo- 
rality ;  (b)  and  dclicta  specialia,  that  is,  those  which  can  be 
committed  by  ecclesiastics  only.     Thus  the  Church  has  made 
various  enactments  regulating  the  manner  in  which  eccle- 
siastics should  perform  the  duties  of  the  ecclesiastical  offices 

1  Canonists  also  divide  crimes,  by  reason  of  the  forum  in  which  they  are 
justiciable,  into  ecclesiastical,  secular,  and  mixed.  By  ecclesiastical,  they  mean 
those  which  offend  directly  against  faith,  religion,  and  ecclesiastical  discipline — 
v.g.,  apostasy,  profanation  of  the  sacraments,  and  which  are  punishable  only  in  the 
ecclesiastical  forum. 

Purely  secular  or  civil  offences  are  those  which  offend  against  the  civil  or  secular 
law,  and  are  punishable  by  the  secular  power. 

Finally,  mixed  offences  are  those  which  are  injurious  both  to  the  Church  and 
State—  v.g.,  drunkenness,  and  which,  in  consequence,  are  punishable  both  by  the 
Church  and  State.  (Prsel.  S.  Sulp.,  n.  717;  Munchen,  vol.  ii.,  p.  73.)  In  the  light 
of  this  division,  it  is  possible  that  the  Instruction  may  mean,  by  reatits  communes, 
those  offences  which  are  called  mixed ;  and  by  transgrcssio  kgiini  ccclesiaslicarum, 
those  which  are  ecclesiastical. 


50       Mode  of  Proceeding  which  must  be  Observed 

committed  to  them,  administer  the  sacraments,  etc.  She 
has  also  laid  down  salutary  rules  which  they  are  bound  to 
observe  in  their  life  and  conduct.  For  instance,  she  forbids 
them  to  frequent  theatres,  to  carry  arms,  to  go  hunting  in 
too  noisy  and  public  a  manner,  to  wear  a  secular  dress,  etc. 
A  violation  of  these  laws  is  indeed  a  violatio  Icgum  Ecclcsice, 
though  not  a  reatns  communis.  Thus  it  will  be  seen  that 
what  is  allowed  in  laics  is  often  forbidden,  and  therefore 
criminal,  in  ecclesiastics.1  By  communis  reatns,  then,  the 
Instruction  seems  to  understand  the  offences  which  are 
common  to  laics  and  ecclesiastics,  as  just  explained. 

119.  II.  Ecclcsiasticarum  Icgum  transgressio. — By  the  viola- 
tion of  ecclesiastical  laws,  the  Instruction  appears  to  mean 
the  delicta  specialia  just  explained,  namely,  the  violation  of 
those  laws  of  the  Church  which  relate  peculiarly  and  solely 
to  ecclesiastics,  as  such — namely,  to  their  manner  of  living, 
to  the  rights  and  duties  of  their  state. 

1 20.  III.  Pracepti  inobservantia. — The  precept  here  meant 
is  that  which  is  described  under  articles  vii.  and  viii.     We 
have  already  seen  that  the  precept  cannot  be  imposed  ex- 
cept upon  an  ecclesiastic  who  is  already  on  the  direct  road 
to   crime,   or  is   guilty   of   scandal.     Yet   there   may  be  a 
violation  of  a  precept,  and   still   there    may    be   no   other 
crime,  in  the  legal  and  canonical  acceptation  of  the  term. 
Thus  an  ecclesiastic  may  be  in  the  proximate  danger  of  be- 
coming a  drunkard,  because  he  is  in  the  habit  of  visiting  a 
certain  saloon  or   house.     Certainly  the  Bishop  can  warn 
and  command  him,  in  the  manner  laid  down  in  articles  v.,  vi., 
vii.,  viii.,  not  to  go  there  again,  and  he  can  punish  him  if  he 
disobeys,  even  though  he  does  not  get  drunk.     Here  there 
is  a  transgression  of  the  precept,  if  the  ecclesiastic  disobeys, 
and  yet  there  is  no  crime,  in  the  canonical  acceptation  of 
the  term,   apart   from   the    disobedience   in    the   case.     Of 

J  See  devita  ethonestatecltricorum,  1.  3,  t.  i.;  in  6°,  1.  3,  t.  i.;  Clem.  Eoi,  1.  3,  t.  i. 


in  Inflicting  Repressive  Punishments.  5  i 

course  in  this  case  the  punishment  could  not  be  as  severe 
as  if  the  delinquent  had  actually  become  drunk. 

121.  Still,  as  a  rule,  the  violation  of  the  precept  or  injunc- 
tion will  be  found  combined  either  with  the  commission  of 
the  rcatus  communes,  or  with  the  transgressio  legum  ecclesiasti- 
carum.     For,  as  has  been  seen,  an  ecclesiastic  who  is  guilty 
of  these  offences  must,  before  being  put  on  a  criminal  trial, 
be  given  the  canonical  warnings  and  the  precept.     And  if 
he  obeys,  and  repairs  the  scandal  or  injury  he  has  given, 
nothing  else  should  be  done.     It  is  only  when  he  disobeys 
the  warning  and  the  precept,  as  we  have  shown,  that  he  can 
be  put  on  trial,  and,  if  convicted,  punished. 

122.  From  what  has  been  said,  it  will  be  understood  in 
what  sense  the  Instruction  states  that  the  Ordinary  may  in- 
stitute a  criminal  action  or  trial  disjunctively  for  the  violation 
of  the  precept,  or  common  crimes,  or  the  transgression  of 
ecclesiastical  laws. 

§  2.  Nature  of  the  Trial. 

123.  Having  explained  the  first  part  of  the  article  under 
consideration,  we  come  now  to  the  second,  which  states  that 
the  trial  shall  be  conducted  in  a  summary  manner.     As  we 
say  in  our  Elements  (Vol.  II.,  n.    1275),  apart  from  a  special 
mandate  of  the  Pope,  the  formalities  of  solemn  or  ordinary 
canonical  trials  must  always  be  observed  in  criminal  and  dis- 
ciplinary causes,  the  summary  trial  being  applicable  only  to 
civil  causes.     Thus  Pope  Clement  V.,  who  in  his  Constitu- 
tion Sape  (Clem.  V.  1 1)  describes  and  defines  the  manner  in 
which  the  summary  trial  is  to  be  conducted,  also  enumerates, 
in  his  Decree  Dispcndiosam  (II.  i)  the  various  causes  which 
can  be  disposed  of  in  a  summary  way.     These  causes  refer 
to   ecclesiastical    elections,   appointments   to    ecclesiastical 
offices  and  the  like,  but  not  to  the  punishment  of  offences. 
See  our  Elements,  Vol.  II.,  n.  1273,  sq. 


52        Mode  of  Proceeding  which  must  be  Observed 

124.  From  this  rule  of  canon  law,  as  established  by  Pope 
Clement  V.,  which  is  still  in  force,  the  Holy  See,  by  the  In- 
struction   of  the  S.  C.  EE.  et    RR.,  June    11,   1880,  (§  ix.) 
granted  a  conditional  dispensation,  by  allowing  ecclesiastical 
courts  of  non-missionary  countries  to  make  use  of  the  sum- 
mary and  simple  form  of  trial  outlined  in  the   Instruction, 
wherever   the  formalities  of   ordinary  trials    could   not  be 
freely  and  effectively  observed.1 

125.  In  the  present  Instruction  of  the  S.  C.  de  P.  F.  for  the 
United  States,  the  Holy  See  goes  a  step  farther,  and  grants  an 
unconditional  dispensation  from  the  general  law,  by  authoriz- 
ing our  Bishops  to  make  use  of  the  summary  canonical  trial 
in  criminal  and  disciplinary  causes  of  ecclesiastics,  without 
making  this  concession  dependent  upon  the  impossibility  or 
impracticability  of  carrying  out  the  formalities  of  formal  trials. 
It  may  therefore  be  said  that,  so  far  as  the  formalities  of  the 
proceedings  are  concerned,  the  trial  laid  down  in  the  In- 
struction is  substantially  the  same  as  that  given  by  Pope 
Clement  V.,s  but  that  so  far  as  regards  the  causes  triable 
by  it,  it  differs  from  the  summary  canonical  trial  of  Pope 
Clement   V.,   in   this,   that   it   applies   to    criminal   causes, 
whereas  the  former  extends  only  to  civil. 

126.  Hence  we  do  not  agree  with  the  Acta  S.  Sedis*  when 
it   holds   that   owing   to   this    difference   the   trial    of   the 
Instruction  of   1880  is  entirely  different  from  the  summary 
trial,  as   denned  in   canon  law,  namely,  in   the   two  above 
decretals  of  Pope  Clement  V. 

127.  Q.  What  is   meant   by  a   summary    canonical  trial? 
What  are  the  formalities  of  ordinary  trials  that  can  be  omitted 
or  must  be  observed  in  summary  trials  ? 

A.  For  the  answer,  we  must  refer  the  reader  to  our  Ele- 


1  Instr.    cit.,  art.  ix. ;  our  Elements,  vol.    ii.,   n.    1277.     The  Instruction  of  1880 
is  given  in  full  in  our  Elements,  vol.  ii.,   p.  424,  sq. 

*  Rota,  Enchir.,  p.  400,  sq.  3  Vol.  xv.,  p.  384. 


in  Inflicting  Repressive  Punishments.  53 

incuts.  Vol.  II.,  n.  1265,  where  we  discuss  these  questions 
ex profcsso.  Suffice  it  here  to  repeat  that  in  the  summary 
trial  only  certain  accidental  formalities  can  be  omitted,  but 
that  nothing  can  be  set  aside  which  is  substantial  or  essential 
to  judicial  proceedings,  as  pointed  out  in  our  Elements,  Vol. 
II.,  n.  693,  694,  696,  698,  704,  1267.' 

128.  Accordingly,  in  summary  trials,  as  defined  by  Pope 
Clement  V.,  and  understood  in  the  present  Instruction  of  the 
S.  C.  de  P.  F.,  it  is  allowed  to  omit  the  formalities  of  ordi- 
nary trials  respecting  (a)  the  formal  tendering  of  the  charge 
— oblatio  libclli,  (b)  and  the  plea  or  lit  is  contcstatio,  both  of 
which  can  be  made  informally,  as  we  shall  see  ;  (c]  the  eccle- 
siastical judge  can  abbreviate  the  terms  or  delays  usually 
granted  to  the  parties — v.g.,  either  to  propose  or  to  deny  the 
specifications   of   the    crime ;    to  produce  or  reply  to  the 
proofs,  etc. ;  (d}  he  can  also  repress  or  restrain  within  due 
bounds  the  too  prolix  and  diffuse  discussions  of  the  prose- 
cutors and  advocates ;  (e)  and  decline  to  admit  too  great  a 
multitude  of   witnesses.     For  other  omissions,  see  our  Ele- 
ments, Vol.  II.,  n.  1269. 

129.  But   the   ecclesiastical  judge  cannot   leave  out  any- 
thing which  is  essential  to  judicial  proceedings.     In  other 
words,  he  must,  as  the  Instruction  (art.  x.)  says,  always  ob- 
serve, in  their  entirety, — intotasuasubstantia — the  rules  of  jus- 
tice.    Consequently,  both  according  to  the  Constitution  of 
Pope  Clement  V.,  and  also  the  Instruction,  he  is  bound  (a) 
to  cite  the  accused  for  trial ;  (b)  while  no  formal  accusation 
or  oblatio  libclli  is  necessary,  as  just  seen,  an  informal  one  is 
required.     In  other  words,  it  is  sufficient  and  necessary  that 
the  plaintiff,  or  diocesan  prosecutor,  in  the  beginning  of  the 
proceedings,  states  or  presents  his  petition,  demand,  com- 
plaint, or  accusation  before  the  judge,  without  any  formal- 


This  is    plainly  stated  in  the  Instruction,  when  it   says :     "  Servatis    semper 
in  tota  sua  substantia  justitiae  regulis." 


54       Mode  of  Proceeding  which  must  be  Observed 

ity,  though  in  a  clear,  distinct,  and  specific  manner,  and  that 
either  in  writing  or  orally.  If  he  does  so  orally,  it  must  be 
forthwith  written  down  by  the  secretary  of  the  court,  and 
filed  among  the  acts  of  the  case. 

130.  (c)  Though  no  formal  lit  is  contestatio  is  prescribed,  as 
seen,  an  informal  one  is  essential ;  that  is,  the  complaint  or 
accusation  must  be  divided  into  distinct  heads,  counts  or 
specifications,  called  positiones  in  civil  causes,  and  capitula,  in 
criminal,  and  these  must  be  communicated  to  the  defendant 
for  his  denial  or  admission.     The  answer  of  the  defendant 
to  these  counts  forms  the  litis  contestatio.     (//)  Unless  the 
litigants  agree  otherwise,  the  judge  can  assign  one  and  the 
same  day  or  term  to  the  plaintiff  or  diocesan  promoter  and 
to   the   defendant   "  ad   exhibendum    omnia   acta   et    muni- 
menta  " — i.e.,  he  can  order  that  the  prosecution  shall  produce 
all  its  proofs,  witnesses,  etc.,  and  the  accused  his  counter- 
witnesses,  documents,  etc.,  within  one  and  the  same  term. 

131.  (e)  The  proofs  submitted  by  the  prosecution  must  be 
as  full  and  complete  as  in  solemn  canonical  trials.      (/)  The 
right  of  defence  remains  as  unimpaired  as  in  formal  canon- 
ical trials,     (g}  The  judge  can  ask  questions  at  any  time 
during  the  trial.    (/*)  He  must  pronounce  sentence  in  writing.1 
See  our  Elements,  Vol.  II.,  n.   1270.     A  cursory  glance  will 
show  that  all  these  enactments  of  the  Clementine  Constitu- 
tion  are  fully  confirmed  and  retained  by  the  Instruction. 
The  ecclesiastical  judge,  then,  should  never  refuse  to  admit 
any  testimony  or  acts,  whether  submitted  by  the  prosecution 
or  the  defence,  that  are  calculated  to  throw  light  on  the  case 
or  clear  up  the  facts  in  dispute. 

132.  From  what  has  been  said,  it  is  plain  (a)  that  the  trial 
laid  down  in  the  present  Instruction  is  a  processus  canonicus,  or 
canonical  trial  proper,  in  the  full  sense  of  the  term.     This  is 
evident,   among   other   proofs,  from    the   fact  that  the  In- 

1  Clem.  Ssepe  2,  de  V.  S.  (v.  II.) 


in  Inflicting  Repressive  Punishments.  5  5 

struction  expressly  calls  it  a  proccssus,  and  moreover,  enacts 
that  appeals  shall  have  a  suspensive,  not  merely  a  devolutive 
effect.  Herein  lies  one  of  the  main  differences  between  the 
trial  or  rather  judicial  investigation,  prescribed  by  the 
Instruction  of  July  20,  1878,  and  the  trial  outlined  in  the 
present  Instruction.  The  latter  is,  as  we  have  just  said,  a 
trial  proper,  or  proccssus  canonicus,  since  it  complies  with 
all  the  essential  formalities  of  trials  prescribed  by  the  sacred 
canons.  The  former  is,  indeed,  as  we  show  in  our  Elements, 
Vol.  II.,  n.  730,  a  judicial  procedure,  but  yet  is  lacking-  in 
some  of  the  substantial  forms  prescribed  by  canon  law  for 
trials  proper,  and  is  therefore  not  a  canonical  trial,  formal 
or  summary. 

ART.  XL 
Manner  of  Beginning  the  Trial. 

XI.  "  Processus  ex  officio  instruitur,  vel  accepto  supplici  libello,  vel  ac- 
cusatione,  vel  nuncio  quoquomodo  ad  Curiam  perlato,  et  usque  ad  terminum 
perducitur  eo  consilio  ut  omni  studio  ac  prudentia  veritas  delegatur,  ac 
turn  de  crimine  turn  de  reitate  vel  innocentia  accusati  causa  eliquetur." 

133.  In  the  preceding  article  we  have  discussed  the  dif- 
ferent categories  of  offences  for  which  an  ecclesiastic  can 
be  placed  on  trial,  and  also  the  form  of  trial.  The  present 
article  goes  a  step  farther  and  shows  how  the  trial  is  actu- 
ally commenced.  It  enacts  that  the  ecclesiastical  judge  can 
begin  the  trial  ex  officio,  as  soon  as  sufficient  reasons  for  so 
doing  are  furnished  either  by  denunciations,  accusations  and 
complaints,  or  by  any  other  means.1  The  judge,  therefore, 
proceeds  ex  officio.  Consequently  the  trial  is  begun  and 
conducted  per  viam  inquisitionis,  and  not  per  viam  accnsationis. 
However,  while  it  is  true  that  the  ecclesiastical  judge 
proceeds  ex  officio,  it  is  nevertheless  also  true  that  he  does 

1  Cf.  Prague  Instruction,  $  55. 


56       Mode  of  Proceeding  which  must  be  Observed 

not  proceed  absolutely  or  wholly  ex  officio,  since  he  proceeds 
only  at  the  instance  of  the  diocesan  prosecutor,  who  takes 
the  place  of  the  accuser  throughout  the  entire  trial.  Con- 
sequently the  mode  of  procedure  of  the  Instruction  holds 
the  mean  between  that  of  accusation  and  inquiry.  In  other 
words,  it  is  the  summary  canonical  trial  by  way  of  inquiry, 
blended  with  tJiat  of  accusation.  It  is  the  procedure  by  way 
of  inquiry,  not  indeed  ex  mero  officio,  but  instantc  promotorc 
fiscali.  See  our  Elements,  Vol.  II.,  n.  954,  sq. 

134.  This  mode  of  procedure  appears  more  in  harmony 
with   the   nature   of   things    than    that    of    pure,   absolute 
inquiry.     Justice  seems  to  require  that  the  judge  should  be 
so  placed  as  to  be  left  perfectly  unbiassed  in  his  judgment. 
He  should  resemble  the  statue  of  justice,  having  its  eyes 
blindfolded   and   holding  in  its  hands  the  scale  of  justice 
evenly  balanced,  inclining  neither  one  way  nor  the  other. 
Accordingly  it  seems  proper  that  the  accuser  and  the  judge 
should  not  be  one  and  the  same  person.     Even  Pope  Inno- 
cent III.,  who  brought  the  procedure  by  way  of  inquiry  into 
prominence,  acknowledges  this  principle,  by  enacting  that 
fama  or  common  report  shall  be  regarded  as  taking  the 
place  of  the  accuser.     It  is  no  wonder,  then,  that  soon  after 
the  time  of  Pope  Innocent  III.  the  practice  of  having  a 
third  person,  either  a  private  individual  or  a  public  official, 
to  intervene  at  trials,  as  accuser,  became  again  universally 
prevalent  in  ecclesiastical  courts. 

135.  The  Instruction,  as  we  shall  explain  more  fully  under 
article  xiii.,  makes   it   absolutely   necessary   that   a   public 
official,    called     diocesan    prosecutor    {procurator   fiscalis), 
shall    be  appointed  in  every  episcopal  court,  whose  right 
and   duty   it   shall   be   to  act   as   accuser   in    criminal  and 
disciplinary   causes    of    ecclesiastics.     Private    individuals 
have  still,  even  according  to  the  Instruction,  the  right  to 
make  complaints  or  accusations.     But  these  complaints  are 
regarded  merely  as  information  upon  which  the  diocesan 


in  Inflicting  Repressive  Punishments.  5  7 

prosecutor  may  base  his  official  charges,  and  which  may 
move  the  Ordinary  to  begin  the  trial.  The  making  of  the 
formal  chance  or  accusation,  with  all  its  legal  effects,  is  now 
reserved,  at  least  practically  speaking,  to  the  procurator 
fiscalis.1 

136.  The  meaning,  then,  of  article  xi.  now  under  discussion 
is,   that   the  bishop   or   ecclesiastical   judge,  having  extra- 
iudicially  received  information,  either  through  complaints, 
denunciations,  accusations,  or  through  other  sources,  that 
a  certain  ecclesiastic,  after  having  been  warned  and  given 
the  precept,  is  guilty  of  a  crime  punishable  by  ecclesiastical 
law ;  and  having,  moreover,  ascertained,  in  an  extrajudicial 
manner,  that  there  exists  common  fame,  fama  communis,  in 
regard  to  the  alleged  offence  ;  and  having  also  informally 
and  extrajudicially  obtained  full   or  at  least  half  proof   of 
guilt,  can,  ex  officio,  begin  the  special  judicial  inquiry,  by 
ordering   the   diocesan  prosecutor   to  draw  up   the   formal 
charges  and  thus  to  commence  judicial  proceedings. 

137.  We  say  first,  either  through  complaints,    etc. ;  here  it  is 
plain  that,  before  taking  any  action  on  these  complaints  or 
accusations,  the  Ordinary  should  carefully  examine  whether 
the   persons   making   the   complaints   are  good   and    trust- 
worthy, or  whether  they  are  animated  by  ill-will  or  other 
unworthy  motives. 

138.  We  say,  moreover,  after  having  been  warned,  etc. ;  for, 
as  we  have    seen,  the  Bishop    cannot,   as   a   rule,  institute 
judicial  proceedings  looking  toward  the  infliction  of  remedia 
rcpressiva,  until  he  has  first  imposed  the  remedia  preventiva. 

139.  We  say,  is  guilty  of  a  crime  punishable,  etc.;  for,  unless 
such  an  offence  were  charged,  no  punishment  could  be  in- 
flicted, and  the  trial  would  be  absolutely  null  and  void  and 
worse  than  useless.    The  various  classes  of  punishable  crimes 
are  enumerated  above,  under  article  x. 

1  De  Brabandere,  vol.  ii.,  n.  121 1. 


58       Mode  of  Proceeding  which  must  be  Observed 

140.  We  say  again,  and  having  also  ascertained  that   there 
exists  common  fame ;  for,  as  we  show  in  our  Elements   of 
Ecclesiastical  Law,  Vol.   II.,  n.  955,  the   ecclesiastical   judge 
cannot,  except  in  a  few  cases  enumerated  in  our  Elements,  Vol. 
II.,  n.  957,  begin  ex  officio  a  special  judicial  inquiry  or  inves- 
tigation against  any  one  who  has  not  been  previously  desig- 
nated by  public  opinion  or  common  report  (infamia  facti)  as  the 
party  guilty  of  the  crime  for  which  the  inquiry  is  to  be  in- 
stituted.   In  other  words,  the  fama  communis  or  infamia  facti 
must  precede  a  special  judicial  investigation  made  ex  officio. 
This  holds  so  strictly  that  when  the  Ordinary  begins  such  an 
inquiry,  where  there  is  no  previous  common  report,  all  his 
acts  and  proceedings  are  null  and  void.  Our  Elements,  Vol. 
II.,  n.  958.     Here  it  should  also  be  observed  that  complaints 
or  denunciations  do  not  supply  the  place  of  common  report : 
and  the  infamia  facti is  required  also,  where  a  complaint  is 
lodged.     Acta   S.   Sedis,  Vol.  XVIII.,  p.  60;  our  Elements, 
Vol.  II.,  n.  944. 

141.  The  reason  is   obvious.     For,  so   long  as  the  crime 
committed  by  an  ecclesiastic  is  occult,  such  ecclesiastic  re- 
mains in  possession  of  his  good  name,  and  therefore  has  the 
right  not  to  have  this  good  name  taken  away  from   him. 
Consequently  the    ecclesiastical  superior   has   no    right  to 
destroy  this  good  name  by  ordering  a  trial  and  thus  defaming 
him,1  save,  perhaps,  in  the  few  cases  given  in  our  Elements, 
Vol.  II.,  n.  957.     This  will  become  still  more  apparent  when 
we  remember  that,  according  to  the  Roman  law,*  adopted  by 
the  Church,  a  good  reputation  is  to  be  preferred  to  any  tem- 
poral emolument,  nay,   it  should  be  as  dear   as  life   itself. 3 
Hence  the  poet  very  justly  writes : 

"  Omnia  si  perdas,  famam  servare  memento; 
Qua  semel  amissa,  postea  nullus  eris." 

142.  If  this  is  true  of  every  person,  it  holds  true  especially 

1  Our  Elements,  vol.  ii.,  n.  956  ;  Rota,  1.  c. ,  p.  278. 
9  L.  Julianus,  26   ff.  (29,  4).  3  L.  Justa.,  9  ff.  de  Man.  vind.  (40,  2). 


in  Inflicting  Repressive  Punishments.  59 

of  ecclesiastics  and  priests.  For,  in  their  case,  the  loss  of 
good  name  is  not  merely  hurtful  to  themselves,  but  detri- 
mental to  religion,  and  destroys  their  usefulness. '  Hence 
the  law  of  the  Church  is  based  on  justice  and  equity,  when  it 
enacts  that,  except,  perhaps,  in  a  few  cases,  the  Ordinary  can- 
not ex  officio  begin  a  special  judicial  investigation  against  an 
ecclesiastic,  where  there  exists  no  previous  common  fame, 
and  where,  consequently,  the  ecclesiastic  has  not,  as  yet,  lost 
his  good  name. 

143.  This  entire  teaching  concerning  the  necessity  of  pre- 
vious fauia  communis  is  fully  confirmed  and  applied  to  trials 
conducted  under  both  the  Instruction  of  June  1 1,    1880,  and 
the  Instruction  for  this  country,  by  a  recent  celebrated  decis- 
ion of  the  Holy  See,  given  by  the  S.  C.  C.  on  April  18, 
1885.    The  case  decided  was  the  following:  A  certain  priest 
of  Milan,  named  David,  was  accused  before  the  Archbishop 
of   Milan  of  having  said  mass  after  he  had  taken   his  break- 
fast.    Thereupon  the  Archbishop  instituted  judicial  proceed- 
ings against  him.    The  curia  found  him  guilty.    He  appealed 
to  the  S.  C.  C.  against  the  final  sentence  of  the  Metropolitan 
Court.     His  advocate  at  Rome  urged,  among  other  things, 
that  the  whole  trial  was  null  and  void,  because,  although 
David  had  been  accused  before  the  Archbishop  of  the  above 
offense  by  two  persons,  yet  there  existed  no  previous  common 
report  or  infamiafacti.     The  S.  C.  C.  decided  twice,  first  on  20 
Dec.,  1884,  and  then  again  on  the   i8th  of  April,   1885,  that 
the   sentence   pronounced    by   the  curia  of   Milan  must  be 
reversed.     See  Acta  S.  Sedis,  Vol.  XVIII.,  p.  56,  sq.,  1885. 

144.  We  say  also,   and  having,  moreover,  obtained  full  or  at 
least  half  proof  of  guilt ;  for,  as  we  show  in  our  Elements,  Vol. 
II.,    n.   994,   a  common  report  is  of  itself  not  sufficient  to 
authorize  the    Ordinary    to   proceed  to   a   special   judicial 
inquiry.     He    cannot   proceed    to   such    an   inquiry    unless 

1  Rota,  1.  c.,  p.  279. 


60       Mode  of  Proceeding  which  must  be  Observed 

there  exists,  besides  fama  communis,  also  at  least  half  proof 
of  guilt.1  Only  when  the  Ordinary  has  found  that  there 
is  common  report,  and  also  at  least  half  proof,  can  he 
begin  a  special  judicial  investigation  by  ordering  the  prose- 
cutor to  prefer  charges.  All  this  is  fully  and  clearly  brought 
out  in  the  above  case  decided  by  the  Holy  See.  See  Acta 
S.  Sedis,  1.  c.,  pp.  60,  74. 

145.  We  also  say,  informally  and  extrajudicially ;  because, 
as  we  have  seen,  in  speaking  of  the  information  gathered  by 
the    Bishop,  prior  to   imposing   preventive    remedies,    the 
Bishop,  or   diocesan   prosecutor,    acting   by    order   of   the 
Bishop,  is  not  bound  to  observe  any  judicial  formality  in  as- 
certaining whether  there  is  sufficient  cause  for  ordering  the 
first  steps  of  the  trial,  namely,  the  drawing  up  of  the  charge 
and  the  processus  informativiis.     From  what  has  been  said  it 
follows  that  a  trial  or  special  judicial  inquiry  should  not  be 
ordered  or  begun  except  for  crimes  which  are  very  grave 
and  also  give  public  scandal ;  that,  consequently,  the  superior 
should  dissemble  and  overlook  the  lighter  offences  and  those 
which  give  no   scandal,  rather  than  institute  judicial   pro- 
ceedings and  inflict  repressive  punishments  on  their  account.  - 

146.  We  say,  orders  the  diocesan  prosecutor  to  draw  itp  the 
official  charges.     The  first  step   in  all  judicial   proceedings, 
whether  by  way  of  accusation  or  investigation,  is  the  pre- 
senting to  the  judge  the  charges   or  bill  of  complaint,  and 
demanding  that  he  shall  proceed  against  the  accused.     See 
our  Elements,  Vol.  II.,  n.  985.    This  is  done  by  the  diocesan 
prosecutor.     This  is  proper.     For,  whatever  is  done  against 
the  accused,  should  be  done  at  the  instance  of  this  public 
official,  lest,  otherwise,  if   the  judge   proceeds  proprio  niotu, 

1  We  say,  at  least,  for,  as  appears  from  the  decision  of  the  S.  C.  C.,  18  April. 
1885,  there  should  be  the  fullest  proofs  possible,— probationes  certissinuc  ;  they  should 
be  so  strong  that  nothing  else  but  the  confession  of  the  accused  seems  necessary. 
(Acta  S.  Sedis,  vol.  xviii.,  p.  60;  Schmalzg. ,  1.  c.,  t.  i. ,  n.  224.) 

-  Arg.  Cap.  Inquis.  21  (v.  i.) ;  L.  levia,  6  ff.  de  inq.  ;  Schmalzg.,  1.  5,1.  5.,  n.  iS6. 


in  Inflicting  Repressive  Punishments.  6 1 

he  would  seem  to  act  both  as  plaintiff  or  accuser  and  judge, 
and  thus  perform  two  kinds  of  incompatible  functions. 

147.  While,  however,  the  formal  or  legal  charge  (libellns 
dcmmciatorius,  accusatorius)  is  formulated  or  framed  and  pre- 
sented by  the  prosecutor,  and  by  him  alone — for  he  alone  is 
the  officially  recognized  accuser — yet  he  cannot  do  so,  unless 
he  has  either  a  general  or  a  special  mandate  to  that  effect  from 
the  Bishop.    The  reason  is  that,  as  we  have  seen,  the  Ordinary 
alone  has  discretionary  power  to  decide  whether  and  when 
judicial  proceedings  shall  be  begun  against  an  ecclesiastic. 

148.  Where,  then,  the  fiscal  procurator,  whether  by  special 
or   general   mandate   of  the  Ordinary,  is  about  to  present 
charges,  he  should  naturally,  before  doing  so,  go  over  all 
the  evidence  in  hand,  and,  if  necessary,  make  further  in- 
quiries, carefully  indeed,  but  discreetly,  extrajudicially  and 
unostentatiously,  in  order  that  he  may  be  able  to  make  the 
charges   in    a   clear,   specific,   and   detailed    manner.       He 
should  frame  the  bill  of  charges  with  care,  since  it  forms 
the  basis  of  the  whole  trial,  and  can,  indeed,  be  changed 
prior  to  the   lit  is  contestatio,  but  not  after  that.     See  our 
Elements,  Vol.  II.,  n.  991. 

149.  As  to  the  formalities  required  in  making  the  charge, 
suffice  it  here  to  remind  the  reader  that  the  trial  of  the  In- 
struction is  a  summary,  not   a  formal  one  ;  that,   therefore, 
the  prosecutor  need  not  make  the  charge  with  the  formalities 
prescribed   for   ordinary    trials ;    that,   in   fact,   all  that    is 
necessary  is,  that  he  shall  make  the  charge  either  orally  * 
or  in  writing,  and  that  the  charge,  no  matter  in  what  form 
it  is  made  or  presented,  or  in  what  terms  it  is  couched, 
shall  set  forth  the  offence  charged  in  a  clear  and  specific 
manner.     He  concludes  his  official,  though  informal,  charge 
by  asking  that  the  judge  shall  proceed  against  the  accused 


1  If  made  orally,  it  must  be  forthwith  written  down  by  the  chancellor,  as  dic- 
tated by  the  prosecutor. 


62       Mode  of  Proceeding  which  must  be  Observed 

pront  de  jure  ;  but  he  does  not  specify  the  punishment  to  be 
inflicted.  It  is  advisable,  also,  though  not  necessary,  for  the 
prosecutor  to  conclude  his  charge  with  this  or  a  similar 
general  formula :  "  Isto,  et  omni  alio  meliori  modo,  etc.  " l 

150.  Having  drawn  up  the  charge  (libellus  accusationis),  he 
presents  it  at  the  episcopal  chancery,  where  the  chancellor 
writes  on  it  the  date  of  its  presentation,  and  then  files  it 
among  the  acts  of  the  case. 2     The  subsequent  steps  the  prose- 
cutor must  leave  in  the  hands  of  the  Bishop. 

151.  Here  it  is  well  to  remember  that  the  diocesan  prose- 
cutor represents  the  diocese  and  the  interests  of  religion  and 
justice  ;  that  it  is  just  as  much  in  the  interest  of  the  diocese, 
religion  and  justice  to  protect  and  acquit  the  innocent,  as  it 
is  to  punish  the  guilty.     Consequently,   while  the  onus  pro- 
bandi  delictum  lies  upon  the  prosecutor,  he  should    collect 
not  only  what  is  damaging,  but  also  what  is  favorable  to  the 
accused.     Hence  also  the  Prague  Instruction  correctly  or- 
dains :    "  The  ecclesiastical  court  is  also  bound,  in  criminal 
causes,  to  order  and  perform  ex  officio  all  those  things  which 
may   serve   to   arrive    at    a  complete   knowledge    of    the 
truth." 3      Consequently  the   Instruction  says  (art.  xi.)   that 
the  object  and  aim  of  the  trial  is  to  find  out  the  truth,  that 
is,  whether  the  accused  is  innocent  or  guilty.     Accordingly, 
both  the  prosecutor  and  the  ecclesiastical  judge  should  try 
to  establish  the  innocence  of  the  accused,  no  less  than  his 
guilt. 

1  Pellegr.,  P.  iv.,  Sect,  i.,  n.  52.  *  Droste,   p.  112.  3  Art.  Ivi. 


in  Inflicting  Repressive  Punishments.  63 

ART.   XII. 

The  Preliminary  Trial,  or  Special  Judicial  Inquiry  which  Pre- 
cedes the  Citation  of  the  Accused. 

(Processus  pro  Informationc  Curies.} 

XII.  "  Ubi  Curiae  jam  constituta  sunt,  compilatio  processus  committi 
potest  probo  ac  perito  viro  ecclesiastico,  cui  assistat  actuarius.  In 
dioecesibus  vero,  in  quibus  Curiae  Episcopales  nondum  possint  institui, 
interim  observanda  est  Instructio  anni  1878,  cum  responsione  earn  sub- 
sequenti  ad  proposita  dubia.  Defensio  autem  rei  erit  in  scriptis  exhibenda 
ad  normam  praesentis  Instructions.  Videlicet  singuli  Antitites  in  Synodo 
Dioecesana  audito  clericorum  consilio,  quod  tamen  sequi  non  tenentur, 
quinque,  vel  ubi  adjuncta  rerumid  fieri  non  sinant,  tres  saltern  presbyteros 
ex  probatissimis  et,  quantum  fieri  poterit,  in  jure  canonico  peritis  seli- 
gant  ad  hujusmodi  officium,  ut  in  praedicta  Instructione  declaratum  exstat, 
exercendum.  Quod  si  ob  aliquam  gravem  causam  Synodus  haberi  ne- 
queat,  quinque  vel  tres,  ut  supra,  ecclesiastici  viri  per  Episcopum  ad  idem 
munus  deputentur.  Electi  in  officio  manebunt  usque  ad  proximam 
Dioecesanae  Synodi  celebrationem,  in  qua.  vel  confirmentur,  vel  alii 
eorum  loco  designentur.  Quod  si  interdum  morte  aut  renuntiatione  vel 
alia  causa  praescriptus  consiliariorum  numerus  minuatur,  episcopus  au- 
dito consilio  caeterorum  ad  commissionem  pertinentium  alios  sufficiet. 
Porro  commissio  haec  consultorum  jurejurando  obstricta  tenetur  ad 
officium  fideliter  adimplendum,  et  praeside  Episcopo  vel  Vicario  Generali 
rem  suam  aget." 

152.  The  Instruction,  in  the  present  article,  indicates  what 
is  to  be  done  after  the  diocesan  prosecutor  has  handed  in 
his  charge,  as  explained  in  the  preceding  article.     We  have 
seen,  in  the  foregoing  article,  that  the  Ordinary,  before  be- 
ginning judicial  proceedings,  by  ordering  the  prosecutor  to 
make  the  charge,  is  obliged  to  ascertain  extrajudicially,  (a) 
the  nature  of  the  charges  (b)  and  the  fundament um  delicti, 
that  is,  the  reliability  of  the  sources  whence  they  emanate. J 

153.  The   information  thus  gathered — v.g.,  from  the  wit- 
nesses and  documents  examined — is,  as  was  seen,  extrajudi- 
ciai,  and    consequently,  though    sufficient  to  authorize  the 
making  of  the  official  charge  and  the  beginning  of  the  trial, 

1  Instr.,  art.  xv. 


64         Mode  of  Proceeding  which  must  be  Observed 

is  yet  without  any  judicial  force,  and  therefore  wholly  inade- 
quate to  warrant  the  issuing  of  the  citation  to  the  accused. 
For,  the  judge  cannot  proceed  to  cite  the  accused  for  trial. 
unless  he  has  at  least  a  judicial, '  not  merely  an  extrajuridical. 
half  proof  of  guilt.  The  reason  is  plain.  A  person  who  is 
cited  as  a  defendant  in  a  criminal  cause,  becomes  thereby 
suspected  of  guilt  among  the  people.  Now,  the  very  law 
of  nature  dictates  that  no  one  shall  be  thus  treated  with- 
out a  sufficient  cause — i.e.,  without  sufficient  grounds 
for  believing  him  guilty.  See  our  Elements,  Vol.  II.,  n. 

993,  sq. 

154.  Consequently,  when  the  Ordinary  or  judge  conducts 
the  trial  per  viam  inquisitionis,  2  as  he  does  according  to  the 
Instruction,  in  the  sense  already  explained,  he  must,  be- 
fore he  can  issue  the  citation  to  the  accused,  examine  in  a 
judicial  though  summary  manner,  both  the  evidence  which 
was  collected  extrajudicially  by  the  Bishop  or  prosecutor, 
prior  to  the  making  of  the  official  charge,  and  also  all  other 
relevant  testimony  which  he  may  be  able  to  gather.  Thus 
he  will  verify  or  substantiate  judicially  what  was  already 
verified  extrajudicially.  We  say  in  a  judicial  though  sum- 
mary way ;  thus  the  witnesses  who  are  examined  must  be 
examined  in  the  presence  of  a  notary,  who  takes  down  the 
testimony,  under  oath,  and  in  the  manner  laid  down  in  the 
Instruction  under  articles  xvii.,  xviii.,  xix.,  xx.  This  pre- 
liminary judicial  investigation  or  trial  is  called /r0fi£fttf  infor- 
mations or  processus  pro  informations  Curies,  because  it  takes 
place  nonduni  constitute  ncc  citato  rco  and  chiefly  for  the 
purpose  of  informing  the  Bishop's  court  whether  there  are 

1  We  say,  at  least ;  for  the  judge  should  try  to  obtain  all  the  proofs  attainable — 
therefore  full  proof,  if  possible,  before  he  cites  the  accused.  Hence  the  processus 
informativus  should  be  as  thorough  as  possible. 

-  When  the  trial  is  per  viam  accitsationis,  no  such  informative  proceedings  are 
required.  For  it  is  the  duty  of  the  accuser,  not  of  the  judge,  to  see  whether  there  is 
sufficient  reason  to  proceed  to  the  citation  (our  Elements,  vol.  ii.,  n.  994). 


in  Inflicting  Repressive  Punishments.  65 

sufficient  grounds,  juridically  speaking,  for  citing  the  ac- 
cused. 1 

155.  When    the  judge   has  thus  juridically   ascertained, 
through  witnesses,  or  other  authentic  and  legal  sources  of 
information,  that   there   is  at  least  &probatio  semi  plena  of 
crime,  he  can  issue  the  citation.     When  the  accused  appears, 
on  citation,  and  has  been  fully  informed  of  all  the  evidence 
collected  against  him,  he  has  the  full  right  to  answer,  that 
is,  to  defend  himself.     After  the  judge  or  auditor  has  ad- 
mitted all  the  witnesses,  documents,  etc.,  produced  by  the 
defendant,  he  closes  the  trial  and  makes  a  synopsis  of  all 
the  evidence  submitted  on  both  sides. 

156.  This  whole  procedure,  namely,  ti\Q  processus  informa- 
tions, the  citation,  the  receiving  of  the  defence,  in  a  word, 
the  whole  trial,  exclusive  of  the  summing  up  by  the  prose- 
cutor, and  the  defendant's  advocate,  and  the  final  sentence, 
is  called  by  the  Instruction  compilatio  processns?    And  justly 
so.     For  the  word  compilatio  means  the  gathering  together 
of  various  objects.     Now  it  is  evident,  from  what  has  been 
said,  that  the  office  of  the  judge,  in  the  above  proceedings, 
is  to  collect,  arrange  and  prepare    all  the  proofs  for  and 
against  the  accused,  so  that  he  may  be  able  to  pronounce  a 
just  sentence. 

157.  The   Instruction  enacts  that  in  those  dioceses  of  the 
United  States,  where  the  curia  has  been  organized  in  the 
manner  indicated  by  the  Instruction,  the  compilatio  processes, 
as   above  explained,  may  be  committed  to  a  worthy   eccle- 
siastic learned  in  canon  law,  who  shall  always  be  assisted 


1  The  Third  Plenary  Council  of  Baltimore  (Nos.  299,  311)  uses  the  phrase  pro- 
cessus  inforniativus  to  signify  the  entire  trial,  exclusive  only  of  the  final  defence  or 
summing  up,  as  described  in  article  xxxii.  The  Council  therefore  employs  the 
phrase  in  a  much  wider  sense  than  canonists,  who  generally  use  it  to  denote  merely 
the  special  judicial  inquiry  that  precedes  the  citation  of  the  accused,  as  we  explain 
above.  However,  it  is  merely  a  question  of  words,  not  of  law. 

-  Cf.  Pellegr.,   P.  iv.,  Sect,  xii.,  n.  41. 


66         Mode  of  Proceeding  which  must  be  Observed 

by  a  notary  or  secretary.  In  other  words,  the  Bishop  can 
authorize  or  delegate  an  ecclesiastic  to  make  the  proccssns 
informativus,  summon  the  accused,  hear  and  admit-  his  en- 
tire defence,  and  close  the  case. 

158.  This  official  is  called  auditor,  or  actorum  redactor,  or 
also  investigating  judge,  in  contradistinction  to  the  deciding 
judge  who  pronounces  the  decision  or  final  sentence.  *     For 
the  auditor,  as  we  say  in  our  Elements,  Vol.  II.,  n.  900,  "  has 
indeed,  according  to  the  Instruction,  delegated  jurisdiction 
so  far  as  the  hearing  or  taking  cognizance  of  the  cause  is 
concerned,  so  that  he  can  issue  the  citation   to  the  accused, 
admit  witnesses,  proofs,  etc.,  but  he  cannot  pronounce  final 
sentence."     Hence   it  will  be  also  observed  that  the   office 
and  functions  of  the  auditor  are  similar  to  those  exercised 
by  the  commissions  of  investigation  according  to  the   In- 
struction  of  July  20,   1878,  and  the  subsequent  authentic 
explanations  of  the  Holy  See.     See  our  Elements,  Vol.  II., 
n.  901. 

159.  Q.  Can  the  auditor  be  challenged  as  suspected,  and 
what  is  the  effect  of  such  challenge  ? 

A.  We  have  seen,  in  our  Elements,  Vol.  II.,  n.  1035,  that 
a  person  who  is  otherwise  perfectly  competent  may  be 
challenged  as  suspected.  We  also  show  in  our  Elements, 
Vol.  II.,  Nos.  904-908,  1042,  that  auditors,  assessors,  and 
commissions  of  investigation  with  us,  may  be  objected  to  as 
suspected.  Hence  it  is  certain  that  the  auditors  of  whom 
we  speak  may  be  challenged  by  the  accused  as  suspected.  * 
This  is  the  common  teaching  of  canonists,  and  is  now  placed 
beyond  a  shadow  of  doubt  by  the  famous  decision  recently 
given  by  the  S.  C.  C.,  Apr.  18,  1885.  (See  the  ActaS.  Sedis, 
Vol.  XVIII.,  p.  56,  sq.,  1885.) 

160.  Q.  How  is  the  challenge  to  be  made? 

A.  Before  answering,  we  premise  :     When  a  person  chal- 

1  Cf.  Cone.  PI.  Bait,  iii.,  n.  323. 

*  Cap.  Super  quastionem  27  (I.  29);     Bouix,  de  Jud.,  vol.  i.,  p.  461. 


in  In/lie  ting  Repressive  Punishments.  67 

lenges  an  ordinary  judge  as  suspected,  he  must  allege  and 
prove  the  motives  on  which  the  challenge  is  based. *  If  he 
does,  the  Ordinary  thus  challenged  must  withdraw  from  the 
case,  on  pain  of  nullity  of  the  proceedings.  2  If  he  does  not 
prove  the  challenge,  the  latter  has  no  effect  whatever. 

161.  We  now  answer:     The  auditor   is   but  a  delegated 
judge.     Now,  it  is  certain  that  a  delegated  judge,  or  an 
assessor, s  or  an  auditor  who  is  appointed  merely  for  a  par- 
ticular cause,  that  is,  to  preside  or  assist  at  a  particular  trial 
only,  and  not  at  trials  in  general,  can  be  challenged  peremp- 
torily, in  the  same  manner  as  members  of  juries  in  our  civil 
courts  can  be  challenged.     In  other  words,  the  accused  can, 
in  the  case,  challenge  the  auditor  without  alleging  or  proving 
any  cause  whatever.  *      The  effect  of  this  peremptory  chal- 
lenge is  that  the  auditor,  assessor  or  delegated  judge  thus 
challenged  becomes  at  once  incompetent,  so  that  if  he  does 
not  retire  from  the  case,  the  whole  proceedings  are  null 
and  void. 5     This  argument  is  clearly  brought  out  in  the 
case  decided  by  the  celebrated  decree  of  the  S.  C.  C.  above 
mentioned. 

162.  But  where  the  assessor,  auditor  or  delegated  judge 
is  appointed  ad  universitatem  causarum,  that  is,  where    he  is 
appointed  to  try  or  assist  at  the  trial  of  any  cause  that  may 
come  up,  and  not  merely  of  this  or  that  particular  cause,  he 
can  be  challenged  only  for  cause  ;   and  consequently  the 
person  challenging  must  allege  and  prove  the  cause  of  the 
challenge,  just  as  in  the  case  of  an  ordinary  judge.6 

163.  From  this  it  will  be  seen  that  where  the  auditor, 
under  the  present  Instruction,  is  appointed  only  to  conduct 
a  particular  trial,  he  can  be  challenged  as  suspected,  without 
cause  ;  but  where  he  is  permanently  appointed — i.e.,  to  con- 

1  Card,  de  I.nca,  lib.   15,  de  Jud.,  disc.  3,  n.  63.  2  Ib.,  n.   71. 

3  Ib.,  disc.  4,  n.  6,  7,  12,  14. 

*  Ib.,  disc.  3,  n.  63;  cf.  Acta  S.  Sedis,  vol.  xviii.,  p.   58,  an.   1885. 
5  Ib.,  n.   71.  e  Tb.,  n.  63. 


68        til  ode  of  Proceeding  which  must  be  Observed 

duct  all  trials,  he  can  be  challenged  only  for  cause.  In  like 
manner,  where  commissions  of  investigation  still  exist 
among  us,  by  Papal  dispensation,  the  members  of  these 
bodies  can  be  challenged  only  for  cause,  at  least,  according 
to  the  letter  of  the  law,  since  they  are  permanently  appointed 
as  assessors,  and  not  merely  for  this  or  that  particular  trial. 
For  fuller  information  on  this  head,  see  our  Elements,  Vol. 
II.,  164.  We  say,  at  least,  according  to  tJie  letter  of  the  A?r*.' ; 
for  as  Card,  de  Luca  teaches,  if  the  contrary  custom  pre- 
vails in  a  place,  it  should  be  followed.  Thus,  as  a  matter  of 
fact,  in  the  Roman  Curia,  ordinary,  and  delegated  judges, 
auditors  and  assessors  who  are  appointed  "  ad  universita- 
tem  causarum  "  may  be  challenged  peremptorily  and  with- 
out cause,  just  like  delegated  judges,  auditors  or  assessors, 
appointed  only  for  a  particular  case.  In  fact,  in  Rome,  as 
Card,  de  Luca  says,  there  is  scarcely  ever  any  occasion  for 
challenging  a  judge,  assessor  or  auditor,  since  the  latter, 
even  though  he  be  a  Cardinal,  usually  retires  from  the  case, 
of  his  own  accord,  whenever  there  is  any  ground  what- 
ever for  a  challenge. 

165.  It  will  be  observed    that  we  state  that  assessors  or 
advisers  of  the  judge  may  be  challenged  as  suspected  in  the 
same  manner  as  the  judge  himself.     This  principle  is  held 
by    canonists   in    general,    and   admits   of  no   doubt.     See 
Card,  de  Luca,  de  Jud.,  disc.  4,  n.  5,  6,  11,  12,  13;  Pelle- 
grino,  P.  2,  Sect.  I.,  Subs.  6,  Inters.  4,  n.  59,  60 ;    Bouix,  de 
Jud.,  Vol.  I.,  p.  468,  469. 

1 66.  Consequently  the  Pastor  seems  to  have  fallen  into  an 
inadvertence  when  it  asserts  in  its  December  number  for 
1885,  p.  51  :  "  David   had  objected  to  the  assessor  even  as 
such.     His  objection    was  overruled    by    the    S.  C.  C.   on 
the  ground  that  the  assessor  teas  no  judge."     For,  as  appears 
clearly  from  the  Acta  S.  Sedis,  Vol.   XVI.,   p.   328-337,  the 
S.  C.  C.,  in  its  decision  of  July  7,  1883,  clearly  admitted,  on 
the  one  hand,  David's  right  to  challenge  the  assessor,  and  on 


in  Inflicting  Repressive  Punishments.  69 

the  other  overruled  David's  challenge  because  Jie  had  not 
slwii'ii  that  there  lucre  sufficient  reasons  for  considering  the  as- 
sessor in  the  case  as  suspected. 

167.  That  this  was  the  reason  why  the  S.  C.  C.  in  the  case 
overruled  David's  challenge,  is  evident  from  a  simple  state- 
ment of  the  facts.    On  the  trial    before  the   curia  of  Milan, 
in  the  first  instance,  David,  the  accused  priest,  objected  to 
Joseph  R.,  one  of  the  assessors  of  the  court,  as  suspected, 
on  account  of  enmity.     The  curia  of  Milan  overruled  this 
objection ;  against  this  ruling  David  appealed  to  the  S.  C. 
C.     His   appeal  was  admitted  and   a  stay  of  proceedings 
granted  by  the  S.  C.  C.     Having,  upon  examination,  found 
that  the  alleged  enmity  of  the  assessor  was  not  proven  by 
David,  the  S.  C.  C.  decided  that  the  assessor  need  not  be 
excluded  from  acting  as  such  in  the  case.     From  this,  then, 
it  will  be  seen  that  the  S.  C.  C.  overruled  David's  objection 
or  challenge,  not  on  the  ground  that  the  assessor  is  no  judge; 
but  because  David  had  failed  to  prove  that  there  were  any 
sufficient  reasons  for  his  challenge.     For  if  the  Sacred  Con- 
gregation had  been  of  opinion  that  it  is  unlawful  to  chal- 
lenge an  assessor,  then  it  would  not  have  admitted  David's 
appeal  at  all. *     In  fact,  according  to  the  Acta  S.  Sedis,  1884, 
p.  328,  sq.,  the  principle  that  auditors,  assessors,  etc.,  can  be 
challenged,  was  reaffirmed  by  the  S.  C.  C.,  as  lately  as  July 
7,  1883,  Deer,  et  Appell. 

1 68.  From   what  has  been  said,  it  will  be  seen  that  the 
duties  of  the  auditor,  or  judicial  commissioner,  may  be  di- 
vided into  those  which  precede  and  those  which  follow  the 
citation  of  the  accused. 

169.  I.    Duties  of  the    auditor  prior  to   the  citation   of  the 
accused. — Prior  to  the  citation,  he  must,  in  a  juridical  manner, 
collect  all  the  proofs  and  documents,  etc.,  which  go  to 'show 
the  guilt  or  innocence  of  the  accused,  in  order  that  it  may 

1  Acta  S.  Sedis,  vol.  xvi.,  p.  336. 


jo       ^lodc  of  Proceeding  which  must  be  Observed 

appear  juridically  whether  there  is  sufficient  ground  for  the 
citation,  and  that  the  accused  may  not  be  able  to  accuse  the 
curia  of  malicious  prosecution  or  calumnia.  This  preliminary 
investigation,  which  canonists  usually  term  proccssus  in/or- 
mativus,proccssuspro  informatione  curies,  should  be  as  thorough 
as  possible,  as  we  explain  in  OUT  Elements,  Vol.  II.,  ^969,  983. 
Hence  he  should  juridically,  though  summarily,  examine 
documents,  witnesses  and  all  other  evidence  produced  by 
the  diocesan  prosecutor  or  by  other  parties.  In  examining 
witnesses,  etc.,  he  must  do  so  in  the  manner  laid  down  in  the 
Instruction,  under  articles  xvii.,  xviii.,  xix.,  xx.  In  other 
words,  he  should  cite  the  witnesses,  examine  them  separate- 
ly, one  by  one,  under  oath,  and  in  the  presence  of  the  secre- 
tary or  chancellor,  who  must  take  down  the  testimony. 

170.  However,  this  examination  of  witnesses,  etc.,  taking 
place,  as  it  does,  in  the  absence  of,  and  prior  to  the  citation 
of  the  accused,  non  constituto  rco,  has  not,  of  itself,  such  force 
of  legal  proof  as  will  suffice  for  conviction,   but  is    chiefly 
for  the   information  of  the  court,    to  enable  it  to  find  out 
whether  there  is  sufficient  cause  for  citing  the  accused,  and 
thus  to  avoid  the  danger  of  being  accused  of  calumnia  or 
malicious  prosecution. 

171.  We  say,  of  itself ;  for  if  constituto  reo,  that  is,  if  the  ac- 
cused, after  being  cited,  is  duly  informed  of  the  examination 
and  testimony  of  the  witnesses,  and  then  declares   that  he 
is  satisfied  with  the  examination-in-chief  of  the  witnesses  as 
made  before  his  citation,  and  does  not  desire  it  to  be  re- 
peated, then  it  obtains  the  same  force  as  though  it  had  been 
made  after  the  citation  and  in  the  presence  of  the  accused. 

172.  II.    Duties  of  the  auditor  after  the  citation  of  the  ac- 
cused.— When  the  auditor  has  thus  collected  all  the  testi- 
mony   which   is   available,  he  closes  the  processes  informa- 
tivus,1  and  issues  the  citation  to  the  accused,  provided  he 

1  Instr.,  art.  xxi. 


in  Inflicting  Repressive  Punishments.  71 

finds  there  is  at  least  a  juridical  half  proof  of  guilt.  After 
citing  the  accused,  the  auditor  must  communicate  to  him  the 
accusations,  unless  this  had  been  done  already  in  the  cita- 
tion, and  the  proofs,  etc.,  extant  in  the  curia  against  him  ; 
admit  his  defence — i.e.,  hear  and  examine  the  witnesses  and 
other  evidence  adduced  by  him,  as  we  state.  In  a  word,  he 
does  what  the  commission  of  investigation  is  empowered 
to  do,  according  to  the  Instruction  of  1878.  This  is  clear 
from  articles  xxii.  to  xxx.  of  the  Instruction. 

173.  Should  the  accused  contumaciously  fail  to  appear  be- 
fore the  auditor,  on  due  citation,  the  latter  will  proceed  in 
the  manner  laid  down  in  article  xxiv.,  as  we  shall  explain 
below. 

174.  When  the  hearing  or  trial  is  over,  the  auditor  writes 
out   a   report   or   synopsis   of  the  proceedings  and  of  the 
proofs  submitted  on  both  sides.     This  report  plainly  resem- 
bles the  verdict  or  opinion  given  by  the  commission  of  in- 
vestigation, according  to  n.   9  of  the  Instruction  of  1878. 
The  auditor,  like  a  master  in  chancery  in  our  civil  courts, 
gives  in  his  report  to  the  court.     Here  his  duties  end. 

175.  Appointment  of  the  auditor. — According  to  the  gener- 
al law  of  the  Church,  the  Bishop  is  not,  generally  speaking, 
obliged  to  appoint  an  auditor  for  his  court,  as  we  show  in 
our  Elements,  Vol.  II.,  n.  902.      The  article  under  consider- 
ation likewise  says  that  the  "  compilatio  processus  "  can,  not 
that  it  should  be   entrusted   to   an    ecclesiastic  as  auditor. 
However,  according  to  commentators  on  the  Instruction  of 

'June  11,  1880,  the  phrase  "  committi potest "  contains  an  im- 
plied recommendation  that  an  auditor  be  appointed ;  that 
the  judge  (called  auditor)  conducting  the  trial  shall  be  differ- 
ent from  the  judge  giving  the  final  sentence ;  that  is,  that 
the  trial  shall  be  conducted  by  one  judge,  and  the  final  deci- 
sion rendered  by  another.  In  fact,  the  auditor,  acting,  as 
he  does,  more  or  less  in  the  capacity  of  inquisitor,  is,  by  the 
very  nature  of  his  functions,  easily  accessible  to  prejudices. 


72       Mode  of  Proceeding  which  must  be  Observed 

Let  us  imagine  ourselves  in  his  place.  He  begins  the  inves- 
tigation free  from  all  bias.  As  a  rule  he  will  not  imme- 
diately find  full  and  conclusive  proofs,  whether  of  guilt  or 
innocence.  He  will  first  discover  indications  of  guilt.  And 
he  will  gradually,  though  perhaps  unconsciously,  form  in  his 
mind  an  opinion  as  to  the  guilt  or  innocence  of  the  accused, 
even  before  he  has  found  sufficient  proof  of  either.  As  he 
proceeds  in  his  investigation,  his  preconceived  opinion  or 
prejudice  may  change,  but  it  may  also  grow  stronger  and 
stronger,  even  though  the  proofs  do  not  warrant  it. 

176.  On  the  other  hand,  the  deciding  judge,  when  different 
from  the  investigating  judge,  has  all  the  materials  or  proofs 
laid  before  him  at  once.     He  does  not  go  in  search  of  them. 
This  fact  constitutes  a  strong  guarantee  of  his  not  prejudg- 
ing   the   case   and   consequently   of    his    impartiality    and 
freedom  from  preconceived  opinions.     It  is  needless  here  to 
say  that  the  office  of  auditor  and  procurator  fiscalis  cannot 
be  discharged  by  one  and  the  same  person.     The  auditor 
acts  as  judge  ;  the  prosecutor  as  accuser. 1     Now  it  is  evident 
that  these  two  functions  cannot  be  exercised  by  the  same 
person.     We  have  said  that  the  auditor  must  be  attended  in 
all  his  proceedings  by  a  notary  or  secretary,  who  shall  write 
down  and  file  all  the  acts,  evidence,  etc.,  as  we  explain  in  our 
Elements,  Vol.  II.,  n.  924.     If  the  auditor  or  judge  proceeds 
without  the  assistance  of  the  secretary,  the  whole  proce- 
dure is  null  and  void.     The  secretary  can  be  challenged  as 
suspected,  just  like  the  auditor,  assessor  or  judge  himself.  - 
It  has  been  repeatedly  decided  by  the  Holy  See  that  the. 
procurator  fiscalis  cannot  discharge  the  duties  of  the  notary  : 
that  the  two  offices  must  be  filled  by  two  different  persons. 3 
Our  Elements,  Vol.  II.,  n.  1146,  sq. 

177.  Commissions  of  Investigation. — These  are  the  functions 


1  Ct.,  art.  xxxtii.  and  xxxv. ;   Droste,  p.  48;  our  Elements,  vol.  ii.,  n.  912,  sq. 
*  Droste,  p.  42,  43.  *  Cf.  S.  C.  EE.,  et  RR.,  7  Feb.,  1677;     Droste.  p.  49. 


in  Inflicting  Repressive  Punishments.  73 

of  the  auditor,  in  those  dioceses  where  the  Bishop's  curia  is 
organized  in  accordance  with  the  Instruction.  In  those 
dioceses,  however,  where  the  Bishop's  curia  cannot  as  yet 
be  established  in  the  above  manner,  the  Instruction  of  the 
S.  C.  de  Prop.  Fide,  dated  July  20,  1878,  together  with  the 
subsequent  authentic  explanations  of  the  same  Congrega- 
tion, and  certain  modifications  laid  down  in  the  present 
Instruction  (art.  xii.),  continues  in  full  force,  and  is  to  be 
observed  until  the  court  can  be  organized  in  accordance 
with  the  present  Instruction.  In  other  words,  where  it  is 
impossible  to  establish  the  curia  in  the  manner  indicated  by 
the  Instruction,  and  set  forth  in  the  Third  Plenary  Council  of 
Baltimore  (n.  299,  sq.)  and  also  in  our  Elements,  Vol.  II.,  n. 
896,  the  compilatio  processus,  or  the  trial,  though  only  from 
the  citation  of  the  accused  to  the  final  sentence  exclusive, 
is  conducted  by  the  commission  of  investigation  and  not 
by  the  auditor.  We  say,  though  only,  etc.;  for  the  processus 
informativus  proper  that  precedes  the  citation,  seems  not  to 
be  conducted  by  the  commission,  since  this  body  is  con- 
vened only  after  the  citation  has  been  already  issued  to  the 
accused. 

178.  The  mode  of  procedure  of  commissions  of  investi- 
gation is  somewhat  modified  by  the  present  Instruction 
(art.  xii.).  Thus  formerly  the  members  of  the  commission 
were  not  sworn  ;  now  they  must  take  the  oath  to  discharge 
their  duties  faithfully.  Moreover,  according  to  the  In- 
struction of  1878,  they  were  presided  over  by  one  of  their 
own  number ;  now  they  conduct  their  proceedings  under 
the  presidency  of  the  Bishop  or  Vicar-general.  Again,  the 
summing  up  for  the  defence,  as  outlined  in  the  Instruction 
of  1878,  could  be  made  orally  or  in  writing;  now  it  must  be 
made  in  writing,  in  the  manner  laid  down  under  articles  xxx.- 
xxxiv.  Apart  from  these  alterations,  the  mode  of  procedure 
to  be  followed  by  commissions  of  investigation,  where 
they  still  exist  ad  interim,  by  Papal  dispensation,  is  the 


74       Mode  of  Proceeding  which  must  be  Observed 

same  as  that  laid  down  in  the  Instruction  of  1878,  and  the 
subsequent  Responsum  ad  Dubia,  and  fully  explained  in  the 
second  volume  of  our  Elements. 

179.  We  have  just   said,   by  Papal  dispensation;    for   the 
Third  Plenary  Council  of  Baltimore   (n.  297   and  n.  298),  in 
accordance  with  the  resolutions  of  the  Roman  Conferences 
held  in  1883,  enacts:  "  Statuimus  ac  omnino  prsescribimus 
ut  in  singulis   Nostrarum    Provinciarum  dioecesibus  curice 
Episcopales   quamprimum    constituantur   vel    saltern    ultra 
triennium  post  Concilii  promulgationem  hasc  curiarum  con- 
stitutio  non  differatur  sine  S.  Congr.  cle  Prop.  Fide  dispen- 
satione  obtinenda  pro  dicecesibus  in  quibus  intra  hoc  tempus 
id  fieri  nequeat." 

1 80.  Consequently   Bishops  are  bound   to  establish   the 
curia,  as  soon  as  possible,  and  at  the  latest,  within  three  years 
after    the   promulgation   of   the    Third  Plenary   Council    of 
Baltimore.      Where   a   Bishop   cannot   establish   the    curia 
within  this  period,  he  is  obliged  to  have  recourse  to  the  S. 
Congr.  de  Prop.  Fide  and  obtain  permission  to  defer  the 
establishment  of  the  curia ;  where  this  permission  has  been 
obtained,  the  Instruction  on  Commissions  of  Investigation, 
dated  July  20,  1878,  together  with  the  response  of  the  Holy 
See,  ad  Diibia,  as  modified  in  article   xii.  of   the   present 
Instruction,  must  be  observed  ad  interim — i.e.,  until  the  curia 
can  be  and  is  established  in  accordance  with  the  present 
Instruction.     Thus   the    Third  Plenary   Council  of  Baltimore 
(n.  298)  enacts :  "  Interim  vero,  quamdiu  ex  dispensatione  S. 
Sedis  curia  in   aliqua   dicecesi   constituta  non  est,  illic  ob- 
servari  debet  Instructio  de  Commissione  Investigationis  20 
Julii,  1878,  cum  responsione  subsequenti  ad  proposita  dubia  ; 
necnon   ea  quas  hac   de  re   in   nuperrima   Instructione    S. 
Congregationis  de  Prop.  Fide  super  clericorum  causas  dis- 
ciplinares,  articulo  xii.  notantur." 


in  Inflicting  Repressive  Punishments.  75 

ART.  XIII. 
The  Diocesan  Prosecutor. 

XIII.  "  In  qualibet  Curia  Episcopal!  procurator  fiscalis  constituetur, 
ut  justitiae  et  legi  satisfiat." 

181.  We  have  just  seen,  that  it  is  obligatory  to  establish  the 
curia  in  every  diocese,  except  where  a  dispensation  is  granted 
by  the  Holy  See  to  continue  the  commission  of  investigation 
ad  interim.     The  question  now  presents  itself :  what  is  here 
meant   by   the    Curia  Episcopalis ?     What   is   its  personnel? 
By  the  Bishop's  court  (Curia  Episcopalis]  is  here  understood 
the  body  of  persons  who,  either  with  the  Bishop,  or  in  his 
name,   and   by    his    authority,   exercise    contentious    juris- 
diction.1    According  to  the  Instruction,  as  explained  by  the 
Third  Plenary  Council  of  Baltimore,  (p..  299,  sq.)  this  curia  is 
necessarily  composed  (a)  of  the  Bishop  or  Vicar-general,  or 
his  delegate,  as  judge ; 2  (b}  of  the  chancellor  of  the  diocese 
as  secretary,3  (c)  and  of  the  diocesan  prosecutor,  as  plaintiff 
or  accuser.     To   these   the    Bishop   may,  if  he  finds  it  ex- 
pedient, add  an  auditor  for  the  processus  compilatio ;  special 
or   additional   notaries    or   secretaries;    messengers.1     This 
organization  or  personnel  of  the  Bishop's  court  for  the  ad- 
judication of  criminal  and  disciplinary  causes  of  ecclesiastics, 
is  in  accord  with  the  prescription  of  the  general  law,  as  we 
show  in  our  Elements,  Vol.  II.,  n.  896-927. 

182.  Observe,  according  to  the   Third  Plenary  Council  of 
Baltimore,  (n.  311)  the  chancellor  of  the  diocese  should  act 
as  the   secretary.     According   to   the   general   law   of  the 
Church,  the  chancellor  of  the  diocese  is  not  necessarily  the 
secretary  of  the  curia ;  the  Bishop  can  appoint  any  other 
competent  person  to  be  the  secretary.     It  seems  probable, 
therefore,  that  when  the   Third  Plenary  Council  of  Baltimore 


1  Bouix,  de  Jud.  vol.  i.,  p.  343;  Craisson,  n.  5752.     -  Cone.  PL  Bait,  iii.,  n.  300. 
s  Ih.,n.  311.  '  Ib.,  11.323. 


76       Mode  of  Proceeding  which  must  be  Observed 

(n.  311)  says  "  Compilatio  processus  committi  potest  probo 
ac  perito  viro  ecclesiastico,  cui  assistat  actuarius,  qui  sit 
cancellarius  diceceseos  " — it  simply  recommends  that  the  chan- 
cellor be  made  the  secretary.  The  secretary,  whether  the 
chancellor  of  the  diocese  or  any  other  person  acts  as  such, 
can  be  challenged  or  objected  to,  as  suspected.1 

183.  We  have  already,  in  this  treatise,  incidentally  touched 
upon  the  duties  of  the  judge,  and  of  the  chancellor  or  sec- 
retary.    Moreover,  we  fully    explain   the    functions  of  the 
judge  in  our  Elements,  Vol.  II.,  n.  711,  sq.,and  n.  897,  sq.;  and 
those  of  the  secretary,  ib.,  n.  918,  sq.     Here,  then,  it  but 
remains   to   say   a   few  words  in  regard  to  the  procurator 
fiscalis.     However,  as  we  also  speak  at  some  length  of  this 
official,  in  our  Elements,  Vol.   II.,  n.  912,  sq.,  we  shall  here 
add  only  a  few  explanatory  remarks. 

184.  The  present  article  enacts  that  a  diocesan  prosecutor 
shall  be  appointed  in  every  Episcopal  Curia.     This  is  in  full 
harmony  with  the  general  law  of  the  Church.2     In  fact,  as 
in   all   criminal   proceedings   of   the  secular   courts  of   the 
United  States,  the  government  or  state  is  a  party  to  the 
prosecution,3  so   likewise   is   the   diocese   or   the   diocesan 
government  always  a  party  to  the  prosecution  in  all  criminal 
proceedings  of  the  ecclesiastical  courts.     This  is  but  proper. 
For  it  is  the  interest  of  the  diocese  that  crime  shall  be  pun- 
ished.    Hence   the   necessity   of   a   special   law   officer    to 
attend   to  the  interests  of  the  diocese  and  to  conduct  all 
criminal   proceedings.     So  necessary  is  it  that  a  diocesan 
prosecutor  shall  be  appointed  and  be  invited  to  intervene  at 
the  proceedings  or  trial,  that  the  trial  is  otherwise  null  and 
void.4     Cf.  our  Elements,  Vol.  II.,  n.  915. 

185.  Rights  arid  duties  of  the  prosecutor. — As  we  shall  discuss 


1  S.  C.  C.,  7  Julii,  1883;  Acta  S.  Sedis,  1884,  p.  328,  sq.;  Droste,  p.  42. 
Our  Elements,  vol.  ii.,  n.  915.  3  Walker,  American  Law,  p.  114. 

4  C.  PI.  Bait,  iii.,  n.  325  ;  Pellegr.,  P.  iv.,  Sect.  I.,  n.  18. 


iii  Inflicting  Repressive  Punishments.  7  7 

them  incidentally  in  the  course  of  this  commentary,  as  occa- 
sion offers,  we  shall  only  touch  upon  them  briefly  in  this  arti- 
cle. It  is  the  right  and  duty  of  the  prosecutor  to  intervene 
at  all  judicial  proceedings,  whenever  any  step  is  to  be  taken 
against  the  accused.  Consequently,  he  must,  on  pain  of 
nullity,  be  cited  to  be  present  at  the  proceedings.  The 
reason  is,  that  being  the  official  prosecutor,  he  takes  the  place 
of  the  accuser.  Now  the  ecclesiastical  judge  should  not  take 
any  step  against  the  accused,  except  at  the  instance  of  the 
prosecutor  or  accuser.  Otherwise,  if  he  proceeded  proprio 
motu,  he  would  appear  to  act  as  judge  and  accuser  at  the 
same  time.  Since  then,  whatever  steps  are  taken  against 
the  accused — v.g.,  the  informative  process,  the  citation,  etc., 
can  be  taken  only  at  the  demand  of  the  prosecutor,  it  is 
plain  that  he  must  necessarily  be  present  at  all  these  pro- 
ceedings, and,  consequently,  must  also,  on  pain  of  the  nullity 
of  the  proceedings,  be  notified  to  attend.1  From  this  it  fol- 
lows that  it  is  his  right  and  duty  to  draw  up  and  present  the 
charges,  and  to  ask  that  the  trial  be  begun,  that  the  prelimi- 
nary inquiry  or  the  proccssus  informattvus  be  instituted  ;  to 
produce  before  the  auditor,  both  before  and  after  the  cita- 
tion, witnesses,  documents,  etc.,  to  sustain  the  charges  and 
the  like.2  (Cone.  PL  Bait.  III.,  n.  301.)  The  Acta  S.  Scdis? 
commenting  on  the  Instruction  of  the  S.  C.  EE.  et  RR.  Sacra 
Jicec  of  June  n,  1880,  article  xi.,  which  is  almost  word  for 
word  the  same  as  article  xi.  of  the  Instruction  Cum  Magno- 
pere,  says :  "  Articulus  xi.,  ante  omnia,  quatuor  exhibet 
modos  processum  instruendi ;  iique  sunt :  I.  ex  officio  ;  2. 
in  sequelam  supplicis  libelli ;  3.  in  sequelam  querelas  ;  4.  in 
sequelam  notitise  quae  alia  quavis  ratione  ad  curiam  perve- 
nerit.  .  .  Processus  ex  notitia  quae  alio  quovis  modoad  curiam 


1  Card.   Kutschker,  Eher.,  vol.  v. ,  p.  493. 

-  Pellegr.,  p.   iv.,   sect,  i.,  n.    18-20 ;    Acta  Eccl.   Mediolan.,  vol.  i.,  p.  22-9$, 
233-566.  3  Vol.  xv.,  p.  385 


7&       Mode  of  Proceeding  which  must  be  Observed 

pervenerit,  turn  prassertim  instituitur,  cum  notorimn  cst  rei 
crimcn,  notorietate  facti.  Verum  quOniam  hie  etiam  modus, 
persona  eget  quae  actoris  seu  accusatoris  partes  suscipiat  ex 
officio,  et  persona  nulla  alia  esse  potest  quam  promoter  fis- 
calis,  cum  primo,  hoc  est  cum  modo  processum  instruendi 
ex*  officio  confunditur."  The  Acta,  therefore,  seems  also  to 
hold  that  even  in  notorious  crimes,  the  trial  laid  down  in  the 
Instruction  must  be  given  to  the  accused. 

1 86.  Of  course,  the  diocesan  prosecutor  can  exercise  the 
functions  of  his  office  only  in  the  curia  for  wJiicJi  lie  is  appointed, 
and  not  in  any  other  curia.      Outside  of  his  own  curia  he 
has  no  status  whatever  as  prosecutor.    Consequently,  when, 
for  instance,  an  accused  ecclesiastic,  who  is  tried  and  con- 
demned by  the  curia,  appeals  to  the  Metropolitan  or  Holy 
See,  the  prosecutor  of  the  curia  from  which  he  appeals  be- 
comes simply  the  appellee  in  the  court  of  the  second  or  third 
instance,  and  has  no  status  whatever  as  prosecutor  in  this 
curia.     In  fact,  every  Metropolitan  court  has  a  prosecutor 
of   its  own,  who  performs  the  duties  of  prosecutor  also  in 
cases  appealed  to  it. 

187.  Likewise,  in  Rome,  there  is  a  procurator  general  at- 
tached to  the  S.  C.  EE.  et  RR.,  whose  office  is  to  act  as 
prosecutor  for,  and  to  represent  and  defend  the  diocesan 
curia  against  which  the  appeal  is  interposed.1      The   other 
Sacred   Congregations   also  have  officials  of  their  own  to 
represent  and  defend  the  diocesan  curia  against  which  the 
appeal  is  lodged. 

1 88.  From  this  it  follows  that  the  functions  of  the  diocesan 
prosecutor  cease  at  once,  so  far  as  a  particular  case  is  con- 
cerned, as  soon  as  the  accused  on  trial  is  either  condemned 
or  absolved.     Consequently,  if,  for  instance,  an  ecclesiastic, 
condemned  in  the  first  instance,  appeals  to  the  Metropolitan 
or  Holy  See,  and  if  the  prosecutor  of  the  curia  of  the  first 

• 

1  Decret.  S.  C.   EE.  et  RR.,   1835,  art.  x.,  xi 


in  Inflicting  Repressive  Punishments.  79 

instance,  presumes  to  appear  in  the  role  of  a  prosecutor  in 
the  curia  to  which  the  case  has  been  appealed,  the  proceed- 
ings would  be  null  and  void,  since  the  action  of  such  prose- 
cutor would  be  that  of  one  who  is  not  a  persona  legitinia 
standi  in  judicio.  For,  according  to  article  xiii.  of  the  In- 
struction, each  curia  has  its  own  prosecutor,  who  alone  is 
qualified  to  perform  the  functions  of  prosecutor  in  his  curia, 
even  in  cases  of  appeal. 

189.  This  principle  of  law.  was  admirably  brought  out  and 
fully  confirmed  in  the  oft-quoted   causa  Mediolan.  fractionis 
jcjnnii,  'decided  by  the  Holy  See,  April  18,  1885.     The  pros- 
ecutor of  the  curia  of  Milan  had,  it  seems,  attempted  to  ar- 
rogate to  himself  the  role  of  prosecutor  before  the  S.  C.  C., 
to   whom   the   case   had  been  appealed  from  Milan.     The 
Roman  advocate  of  David,  the  appellant,  however,  promptly 
and  cleverly  pointed  out  the  arrogance  of  this  role,  and  con- 
tended that  in  consequence  the  proceedings  were  invalid. 
The  decision  of  the  Sacred  Congregation  of  Council  sus- 
tained this  view,  according  to  the  Acta  S.  Scdis.1 

190.  In  this  celebrated  case,  which  is  of  the  greatest  prac- 
tical consequence,  also  for  us,  the  principle  was  clearly  and 
unequivocally  established,  as  the  Acta  S.  Scdis  teaches  that 
whatever  is  done  in  violation  of  the  forms  of  trial,  as  laid 
down  in  the  Instruction  of  June   II,    1880,  is  null  and  void, 
even  though  the  Instruction  nowhere  expressly  decrees  that 
the   violation  shall  nullify  the   proceedings.      For,   as   the 
Roman  advocate  of  the  priest  David  A.,  the  appellant,  well 
argued,    it  is  a  general  principle  or    axiom    of    law    that 
whatever  is  done  against  the  law  is,  not  merely  illicit,  but 
also  mill  and  void,  even  though  the  law  does  not  expressly 
so   declare.      This   axiom   is   expressly   laid    down   in    the 
Roman  law,  enacted  by  the  emperors  Theodosius  and  Val- 
entinian,2  and  is  fully  adopted  by  the  Church,  in  the  rcgula 

1  Acta  S.  Sedis,   vol.  xviii.,  pp.   73-75.         :  L.  5,  C.  de  Leg.  (I.  14.) 


So         Mode  of  Proceeding  which  must  be  Observed 

64,  de  reg.  jur.  in  6,  which  says  :     "  Quae  autem  contra  jus 
fiunt,  debent  utique/r^  infectis  haberi"* 

191.  The  reason  is  that  the  forms  of  procedure  prescribed 
by  the  law  are  intended  by  the  law  to  serve  as  the  necessary 
means  for  finding  out  the  truth  and  thus  rendering  justice  to 
the    parties.      Hence  these  forms  and  rules  pertain  to  the 
very  substance  of  justice  itself.2     Consequently  a  violation  of 
these  forms  of  justice  .and  law  not    unfrequently    inflicts 
greater  injury  than  the  violation,  of  justice  and  law  itself,  as 
was  ably  argued  by  the  Roman  advocate  of  David,  the  ap- 
pellant in  the  case,  and  is  also  observed  by  the  editors  of 
the  Acta  S.  Sedis,  Vol.  XVIII.,  p.  74. 

192.  We  have  said  that  according  to  the  Acta  S.  Sedis,  this 
axiom  of  law  has  been  confirmed  in  the  above  decision  of 
the  Holy  See,  and  applied  to  the  form  of  trial,  as  outlined  in 
the  Instruction  of  1880.      For,  the  trial  of  this  case,  which 
took  place  in  the  curia  of  Milan,  acting  as  the  curia  of  the 
first  instance,  was  conducted  under  the  rule  laid  down  in  the 
Instruction  of  the  S.  C.  EE.  et  RR.,  dated  June  n,  1880,  of 
which  our  Instruction  is  almost  an  exact  copy.     Consequent- 
ly, the  above  decision  of  the  S.  C.  C.,  and  the  inferences 
drawn  from  it  by  the  Acta  S.  Sedis,  are  of  the  greatest  prac- 
tical importance  also  for  this  country. 

193.  Appointment   and  removal  of  the  prosecutor. — He    is 
appointed  ad  beneplacitum?     Consequently  he  is   removable 
indeed  without  a  cause  specified  in  canon  law,  and  without 
a  formal  trial,  though  not  without  a  grave  and   sufficient 
cause.     He  is  entitled  to  a  salary  from  the  Bishop,  even 
though  no  agreement  to  that  effect  was  made  beforehand.4 

194.  It  is  needless  here  to  add  that  the  prosecutor  cannot 
act  as  secretary,  nor,  inversely,  the  secretary  as  prosecutor  ; 


1  Cf.  Acta  S.  Sedis,  vol.  xviii.,  p.  61.  -  Ib.,  p.  59. 

3  For  the  formula  of  appointment,  see  Bouix,  de  Jud.,  vol.  ii.,  p.  482. 

4  Bouix,  de  Jud.,  vol.  ii.,  p.  475. 


in  Inflicting  Repressive  Punishments.  8 1 

neither  can  the  prosecutor  act  as,  or  perform  the  functions 
of  the  auditor.  These  three  officials  must  be  distinct  per- 
sons, since  their  offices  are  such  as  cannot  be  united  in  one 
and  the  same  person.  See  our  Elements,  Vol.  II.,  n.  914. 


ART.  XIV. 
Mode  of  Serving  Judicial  Notices  and  Citations. 

XIV.  "  Pro  intimationibus  et  nbtificationibus,  si  apparitores  curiae  de- 
sint,  utatur  episcopus  persona  aliqua  qualificata  quae  eas  exhibeat,  ac  de 
hoc  ipsum  certiorem  reddat :  vel  etiam  a  curia  per  publicos  tabellarios 
commendatae  (quibus  locis  hoc  systema  viget)  transmittantur,  exquisita 
fide  exhibitionis  atque  acceptionis  vel  repudii.  Intimationes  et  notifica- 
tiones  semper  in  scriptis  absolute  fiant." 

195.  Once  the  judicial  proceedings  have  begun,  as  ex- 
plained under  article  xi.,  it  will  become  necessary  for  the 
auditor  or  judge  conducting  the  compilatio  processus  to  cite 
witnesses,  and  the  accused,  and  to  send  other  notices  to  the 
parties.  The  present  article  provides  for  the  proper  serv- 
ing or  delivery  of  these  notices  and  citations.  It  establishes 
three  ways  of  serving  or  executing  them  :  first,  by  official 
messengers  of  the  curia ;  second,  by  any  trustworthy  or 
suitable  person,  in  case  there  are  no  official  messengers  at- 
tached to  the  curia  ; 1  third,  by  registered  mail,  where  this 
postal  system  exists.  Any  of  these  three  modes  can  be 
adopted  in  the  United  States.  The  main  object  of  these 
provisions  is  to  obtain  a  reliable  proof  of  the  delivery  of 
the  citation  of  notices.  When  the  notice  or  citation  is 
served  on  the  party  by  the  official  messenger  or  any  other 
suitable  person,  the  latter  shall  inform  the  curia — i.e.,  the 
auditor  or  judge — that  he  did  serve  the  notice  ;  and  such 
affirmation  or  statement,  taken  down  by  the  notary  and 

1  Thus  it  will  be  seen  that  in  ecclesiastical  trials,  citations  and  notices  may  be  de- 
livered not  merely  by  official  messengers,  but  also  by  private  persons.  (Pierantonelli, 
Praxis,  p.  128.) 


82       Mode  of  Proceeding  which  must  be  Observed 

filed  among  the  acts,  shall  constitute  full  proof  of  the  ser- 
vice. When  the  delivery  is  by  registered  mail,  the  receipt 
or  refusal  of  the  letter  on  the  part  of  the  person  to  whom  it 
is  addressed,  which  is  returned  by  the  Post  Office  to  the 
sender,  is  full  proof  of  the  execution  or  delivery  of  the  notice. 

196.  When  a  messenger  or  person  is  employed  to  deliver 
these  notices,  the  auditor  of  the  "  Praslectiones  S.  Stilpitii  " 
advises  that  only  ecclesiastics  be  made  use  of, l  as  far  as  pos- 
sible, in  order  that  many  things  which  effect  the  dignity 
and  honor  of  ecclesiastics  and  the  ecclesiastical  state,  may 
thus  be  kept  from  the  laity.     For  further  information  re- 
garding official  messengers,  see  our  Elements,  Vol.  II.,  n.  926. 
Concerning  the  delivery  of  citations,  see  our  Elements,  Vol. 
II.,  n.  1007. 

197.  The  Instruct™  adds  in  the  article  under  discussion  : 
"  Intimationes    et   notificationes    semper   in   scriptis   absolute 
fiant."     Consequently  the  proceeding  will  be  ;/////  and  void, 
unless  the  notices  and  citation  are  made  in  writing.     This 
seems  to  apply  not  merely  to  citations  and  notices  directed 
to  the  accused,  but  also  to  those  addressed  to  witnesses  and 
others   who   appear   in  the  proceedings.      For,  the  above 
paragraph  speaks  of  notices  in  general,  and  not  merely  of 
notices  to  the  accused. 

ART.  XV. 
Groundwork  or  Basis  of  the  Prosecutor  s  Charges. 

XV.  "  Delicti  fundamentum  erui  potest  ex  ipsa  expositione  habita  in 
processu,  quae  authenticis  informationibus  vel  confessione  extrajudiciali, 
vel  testium  depositionibus  confirmetur :  transgressio  vero  praecepti  ex 
ipso  decreto  et  actu  intimationis  ad  normam  art.  vii.  et  viii.  factas. 
deducitur." 

198.  We  have  seen,  under  article  xi.,  that  the  first  step 
of  the  trial  or  special  judicial  inquiry  instituted  ex  officio  is 

1  Vol.  iii.,  pp.  9,  10. 


in  Inflicting  Repressive  Punishments.  83 

the  preferring  of  the  charge  by  the  fiscal  prosecutor.  It 
has  also  been  shown  that  in  this  official  charge  or  indict- 
ment, the  diocesan  prosecutor  must  state  clearly  and  speci- 
fically (a}  the  nature  of  the  offence  charged  :  its  chief  or 
substantial  details  ;  the  time  and  place  of  its  commission  ; 
(b)  as  a  rule,  also  that  the  accused  was  duly  warned  accord- 
ing to  article  vi.  of  the  Instruction ;  (c)  and  also  given  the 
formal  precept,  according  to  articles  vii.  and  viii.  of  the 
Instruction ;  (d]  and  that  he  spurned  the  warnings  and 
precept  and  is  consequently  incorrigible. 

199.  Now,  how  is  he  to  obtain  this  information,  or  these 
particulars  which  form  the  foundation  or  groundwork  of 
his  charge  (Jvndameutum  delicti)"*     The  present  article  of 
the  Instruction  answers  that  the   details  in  question,  so  far 
as   they    relate  to  the  crime  itself,    can   be  obtained   from 
the  extrajudicial  statement  of  the  facts   or  alleged  offence 
received    by   the    Bishop   or   fiscal    prosecutor   when   the 
offence  was  first  brought  to  his  notice,  whether  by  com- 
plaints, accusations  or  otherwise,  as  explained  under  article 
xi.,  or  also  from  the  summariafacticogititio  which  precedes  the 
imposing  of  preventive  remedies  ;  that,  however,  this  state- 
ment of  the  alleged  facts  must  always  be  corroborated  extra- 
judicially  (a)  by  authentic  informations    gathered    by  the 
Bishop    or   fiscal    prosecutor,    (b)   or  by    the  extrajudicial 
confession  of  the  accused,  (<:)  or  by  the  depositions,  even 
though  extrajudicial,  of  witnesses. 

200.  The  Instruction  furthermore  answers  that  the  details 
relating  to  the  giving  of  the  precept — namely,  the  date  and 
manner  of  its  having  been  given — its  tenor,  etc.,  can  be  ob- 
tained by  the  prosecutor  from  the  authentic  copy  of   the 
precept  or  decree  itself,  and  the  minutes  showing  when  and 
how  it  was  given,  extant  in  the  episcopal  archives.     The  par- 
ticulars as  to  the  violation  of  the  precept,  on  the  part  of  the 
accused,  the  prosecutor  will  obtain  in  the  same  manner  as 
in  the  case  of  the  main  offence,  namelv,  bv  authentic  infor- 


84       Mode  of  Proceeding  which  must  be  Observed 

mations,  or  by  the  extrajudicial  confession  of  the  accused, 
or  by  the  extrajudicial  testimony  of  witnesses.  We  have 
said,  extrajudicially;  for  the  first  step  of  judicial  proceedings, 
is  the  presenting  of  the  charge  by  the  prosecutor.  Conse- 
quently all  the  steps  which  precede  it  can  be  and  are  done 
in  an  extrajudicial  manner. 

201.  The  meaning,  then,  of  this  article  (xv.)  is :   i.  That  the 
prosecutor,  whose  duty  it  is  to  prefer  the  charge,  must  base 
his  libcllus  or  official  charge  on  information  received  either 
by  himself  or  by  the  Bishop — v.g.,  already  in  the  summaria 
facti  cognitio  (art.  v.),  and  corroborated,  even  though  extra- 
judicially, by  inquiries  from  authentic  sources,  etc.     2.  That 
before  the  prosecutor  draws  up  and  presents  the  charge,  he, 
or  the  Bishop  ordering  him   to   prefer   the   charge,    must 
extrajudicially     ascertain — v.g.,     by    examining    witnesses, 
documents,  letters,  or  making  other  inquiries  in  authentic 
quarters;  (a)  what  the   alleged  offence  or  corpus  delicti  is, 
and  whether  it  is  one  that  is  punishable  according  to  the 
sacred  canons,  otherwise  it  may  be  found  at  the  end  of  the 
trial  that  although  it  was  true  and  proven,  yet  the  offence  is 
not  punishable ;  (b]  whether  there  are  sufficient  grounds  for 
the  charge.     For  if  the  prosecutor  prefers  the  charge  with- 
out having  a  solid  foundation,  or  good  reasons  for  believing 
the  accused  guilty,  the  latter  would  have  the  right  to  ap- 
peal to  the  Metropolitan  or  Holy  See.1 

202.  If   it    is  found,   upon    the  conclusion  of   this  extra- 
judicial   investigation,   that    there    are    good    reasons   for 
believing  the  accused  guilty  of  the  charge,  and  that  there  is 
consequently  a  fundamcntum  delicti,  the    prosecutor  draws 
up  and  presents  the  official  charges  ;  otherwise,  the  charges 
should  be  dropped.     These  rules  are  just.     For  the  law  of 
nature  itself  dictates  that  such  grave  and  official  and  public 
imputations  as  accusations,  as  the  charges  of  the  prosecutor, 

1  Droste,  p.  no. 


in  Inflicting  Repressive  Punishments.  85 

shall  not  be  made  against  any  one,  especially  an  ecclesiastic, 
except  when  they  are  based  on  solid  reasons. 

203.  The  prescriptions  of  the  article  (xv.)  are  similar  to 
those  which  obtain  also  in  the  secular  courts  of  the  United 
States.     Thus,  in  our  secular  courts,  the  formal  charges  or 
true  bill,  or  indictment,  is  presented  by  the  grand  jury  in 
all  criminal  causes.     Now,  as  Walker  says ; l  the  rule  is  that 
they  (the  grand  jury)  ought  not  to  find  a  bill  or  indictment  un- 
less the  evidence  be  such  as,  if  uncontradicted,  would  induce  them 
on  the  trial  to  convict. 

ART.  XVI. 

What  Kind  of  Proof  is  Required  for  the  Citation  and  Eventual 
Conviction  and  Condemnation  of  the  Accused  f 

XVI.  "  Ad  admittendam  vero  rei  culpabilitatem,  necessaria  est  probatio 
legalis  quae  iis  momentis  constare  debet,  quibus  veritas  vere  demonstratu 
elucescat,  vel  saltern  moralis  convictio  inducatur  quocunque  rationabili 
dubio  oppositi  remoto." 

204.  The  previous  article  defines,  as  we  have  seen,  what 
kind  of  proof  of  guilt  must  be  on  hand  before  the  prose- 
cutor can  draw  up  and  present  the  charges.     The  present 
article  goes  a  step  farther  and  shows  what  sort  of  proof  is 
required,  in  order  that  the  judge  or  auditor,  after  receiving 
the  prosecutor's  charges,  may  be  able  to  issue  the  citation 
to  the  accused,  or  at  the  end  of  the  trial  pass  sentence  of 
condemnation  upon  him. 

205.  When  the   prosecutor  has    presented   the    charges, 
the   Bishop,  or  auditor  delegated  by  the  Bishop  to  conduct 
the  compilatio  processes,  cannot  forthwith   proceed  to  cite 
the  accused  for  trial.     He  must  first  institute  a  juridical  in- 
quiry or  investigation  into  the  charges  presented  by  the 
prosecutor,  in  order  to  find  out  whether  they  are  based 

1  Walker,  Am.  Law,  p.  715. 


86       Mode  of  Proceeding  which  must  be  Observed 

upon  probatio  legalist  This  is  the  meaning  of  the  present 
article  of  the  Instruction.  This  preliminary  judicial  inquiry- 
is  called  processus  informativus,  and  is  always  necessary  prior 
to  the  citation  of  the  accused,2  as  is  plainly  indicated  by 
articles  xvi.  and  xxi.  of  the  Instrnctio,  and  also  by  the  Third 
Plenary  Council  of  Baltimore,  n.  311,  312. 

206.  This  is  but  just.     For  to  summon  him  to  appear  be- 
fore the  judge,  in  order  to  answer  to  the  charges  preferred 
against  him  by  the  prosecutor,  is  tantamount  to  assuming 
juridically  that    the    accused   is  prinia  facie  guilty  of  the 
charges.     Hence  to  summon  the  accused  without  having  as- 
certained whether  the  charges   are  based  upon  legal  proof, 
would  be  to  assume  him  priina  facie  guilty  of  the  charges, 
and  thus  to  disgrace  him  without  a  sufficient  cause,  and 
would   therefore    render   the  curia   liable    to  calumnia    or 
false  prosecution,  and  to  damages  for  such  false  prosecu- 
tion.8    Consequently  the  present  article  very  properly  pre- 
scribes, that  in  order  to  cite  the  accused  and  thus  assume 
him   guilty, — legal   proof   is   necessary.      The    words   are : 
"  Ad  admittendam  vero  rei  culpabilitatem,   necessaria   est 
probatio  legalis." 

207.  We    have  said  that  this  processus  informations  is   a 
juridical  investigation.     In  order  to  understand  this  better, 
it  is  necessary  to  distinguish  between  the  preliminary  in- 
vestigation (a)  which  precedes  the  imposing  of  the  preven- 
tive remedies,  or   also  the    presenting  of  the  prosecutor's 
charge,  (b)  and  that  which  follows  the  libellus  or  charge  of 
the  prosecutor,  but  yet  precedes  the  citation  of  the  accused. 
The  latter  is  judicial,  the  former  extrajudicial.     Now  the 
extrajudicial    investigation,  while    sufficient  to  enable  the 
Bishop  to  impose  preventive  or  paternal  remedies,  and  if 
these  prove  of  no  avail,  to  order  the  prosecutor  to  prefer 
official   charges,  and  thus   take  the  first   step  in   criminal 

J  Cone.  Plen,  Bait.  iii.  n.  311. 
8  Reiff,  1.  5,  t.  i.,  n.  361,  403;  Bouix,  de  Jud.    1.  c.,  p.  153.       *  Instr.  art.  xliv. 


in  Inflicting  Repressive  Punishments.  8  7 

proceedings,  is  not  sufficient  to  warrant  the  judge  to  issue 
the  citation  to  the  accused,  and  thus  to  assume  him  prima 
facie  guilty,  as  we  have  already  shown. 

208.  Here  the  question  presents  itself :  What  is  meant  by 
probatio  legalis  ?     By  a  proof  (probatio]  in  general,  is  under- 
stood any  legitimate  means  or  argument,  by  which  the  ex- 
istence or  truth  of  some  controverted  fact  or  thing  is  shown. 
Proofs   are   of  two    kinds :    judicial   and   extrajudicial.     A 
judicial   proof    (probatio  judicialis) — and  we  speak  here  of 
judicial  proofs  only — is  any  legitimate  means  or  argument, 
by  which  the  truth  of  a  disputed  or  doubtful  fact  is  demon- 
strated before  the  judge.1 

209.  Let  us  briefly  explain  this  definition.     We  say  first, 
means   or  arguments.     These    terms  are   taken   in  a   broad 
sense,  and  mean  witnesses,  documents,  etc.     We  say,  legiti- 
mate ;  that  is,  the  proof,  in  order  to  have  any  force  in  ju- 
dicial proceedings,  must  be  such  as  the  law  prescribes.     In 
other  words,  it  must  (a)  be  one  of  those  arguments  which 
the  law  sanctions  and  admits  as  proof ;  (b}  it  must  have  all 
the  requirements  and  formalities  prescribed  by  law.     If  it 
lacks  any  of  these  conditions,  it  is  not  legitimate  or  legal 
proof,  and  is  of  no  force  in  judicial  proceedings. 

210.  Here,  then,  two  questions  present  themselves:  First, 
What  are  the  various  legal  proofs  or  probationes  legates? 
Second,  What  are  the  requirements  and  formalities  prescribed 
by  law  for  legal  proof?     In  answer  to  the  first  question,  we 
observe  that  in  order  to  avoid  uncertainty  and    confusion, 
the  law  itself  determines  what  shall  be  competent  proofs  in 
judicial  proceedings.1     What  are  they?     They  are  of  two 
kinds :  perfect  or  full,  and  imperfect  or  half-full.     What  are, 
according  to  the  sacred  canons,  perfect  proofs?     See  our 


1  Schmalzg,  1.  c.,  t.  19,  n.  2;  Bouix,  de  Jud.,    vol.  i.,  p.  302;  Santi,  1.  c.,   t.    19, 
n.  I ;    Sanguineti,  n.  594;  Grandeclaude,  1.    c.,  t.  19,  vol.  ii.;  p.  102. 
-  Sanguineti,  1.  c. ,  587,  c. ;     Santi,  1.  c.,  1   2,  t.  19,  n.  3. 


88        Mode  of  Proceeding  which  must  be  Observed 

Elements,  Vol.  II.,  n.  815.  What  are,  according  to  ecclesi- 
astical law,  imperfect  proofs?  See  our  Elements,  Vol.  II.,  n. 
816. 

211.  Our  answer  to  the  second  question  is  that,  speaking 
in  general,  the  law  of  the  Church  determines  not  only  what 
means  or    arguments    shall   constitute    legal  proofs,  as  we 
have  just  seen,  but  also  what  qualifications  it  should  possess 
and  in  what  form  or  manner  it  must  be  produced.1     Thus 
the   law   of  the  Church  enacts  that   the  testimony  of  two 
competent  witnesses  shall,  as  a  rule,  constitute  full  proof  in 
judicial  proceedings.     It   says,  moreover,  what  is  required 
in  order  that  a  witness  may  be  competent.     It  establishes, 
moreover,  the  form  or  manner  in  which  he  must  give  his 
testimony,  namely,  separately,  under  oath,  before  the  judge 
and  a  notary. 

212.  Speaking  in  particular,  the  following  are  the  chief 
conditions  or  qualifications  or  formalities  which  the  law  re- 
quires or  prescribes  for  all  juridical  proofs  :     i.    A  judicial 
proof  must  be  made  before  the  judge  and  a  notary  whose 
duty  it  is  to  write  it  down.     If  nobody  is  present,  the  proof 
is  not  legal  or  juridical,  and  will  consequently  have  no  effect 
in  judicial   proceedings.2     2.    It  must  be  clear  and  determi- 
nate, not  vague  or  obscure.     3.  It  must  be  conformis  libello, 
or   to  the  point ;    that1  is,    it  must    have    reference  to  the 
charge  as  set  forth  in  the  prosecutor's  official  charge.     In 
other  words,  it  must  either  prove  or  disprove  the  charges, 
as  contained  in  the  prosecutor's  indictment ;    otherwise    it 
will   have   no    effect.      For   only   those    things   are   to   be 
proved  or  disproved    which    have  been  properly  brought 
before  the  judge  (or  which  are  in  court),  or  which  are  being 
tried  in  court.     Hence   other  proofs,  not  referring  to  the 
charges    made,  are  to  be  rejected  as  vain  and  superfluous.3 


1  Sanguineti,  1.  c.,  n.  598,  c.;  Santi.,  1.  c.,  n.  I.;  Grandeclaude,  vol.  ii.,  p.  103,  b. 
3  Sanguineti,  1.  c.,  p.  422.  :!  Samti,  1.  c.,  5. 


in  inflicting  Repressive  Punishments.  89 

4.  It  must  be  made  in  judicio — i.  e.,  during  the  trial — 
/.  t\,  after  the  lit  is  cont.  and  in  the  presence,  real  or 
verbal,  of  the  adversary.  This  rule,  however,  admits 
of  exceptions.  Thus  in  trials,  per  viam  inquisitionis,  as 
is  ours,  the  proofs  can  be  submitted  before  the  citation 
of  the  accused  and  the  litis  contestatio.  But  in  this  case  they 
will  have  indeed  the  effect  to  authorize  the  curia  to  proceed 
to  the  citation ;  but  they  will  not  have  the  force  of  legal 
proof  to  authorize  the  conviction  of  the  accused,  unless  they 
have  been  legitimized  as  we  shall  explain.1 

213.  These  conditions  are  required  in  all  your  proofs  and 
are   therefore   common   to   all.       Besides   these   formalities, 
which   all  proofs  must   have,  the   law  also  lays   down  the 
special  conditions  which    are  peculiar  to  each  kind  of  proof 
in  particular.     Thus   it  enacts,  in    regard  to  witnesses,  (a) 
that   they   shall  be  heard  separately,  (b)  under  oath,  etc. 

214.  Hence  the  law  determines  (i)  the  qualifications  of  each 
kind  of  proof ;  thus  it  enacts,  in  regard  to  witnesses,    (a) 
that  two  unexceptionable  witnesses  are  required  ;  (ft)  that 
witnesses  are  unobjectionable,  when  they  have  none  of  the 
defects  or  disqualifications  pointed  out  in  law ;  (c)  that  their 
testimony  must  agree,  etc. ;  (2)  the  form  peculiar  to  each 
kind  of  proof — i.e.,  the  manner  in  which  each  kind  of  proof 
must  be  made.     Thus,  in  regard  to  witnesses,  it  says :  they 
shall  be  heard  (a)  separately,  (d)  under  oath,  (c)  by  the  judge 
himself  or  his  delegate,  (d)  in  the  presence  of  a  notary  who 
shall  write  out  the  testimony.     All    these  conditions  and 
formalities  are  full}-   given  and  explained  in  our  Elements, 
Vol.  II.,  n.  824,  sq. 

215.  The  Instruction  requires  not  only  frobatio  legalis,  but 
•tisQprobatio  plena,  that  is,  such  legal  proof,  qua  Us  momentis  con- 
stare  dcbet,  quibits  -ccritas  vcrc  dcmonstrata  elucescat,  vel  saltern 
moralis  convict io  indncatur  quocnnqnc  rationabili  dubio  oppositi 

1  Grandeclaude,  1.  c.,  103;  Sanguineti,  1.  c.,  421,  422. 


90       Mode  of  Proceeding  which  must  be  Observed 

remoto.      This  is  also   the   teaching  of  canonists.      See   our 
Elements,  Vol.  II.,  n.  817,  8 1 8,  880. 

216.  Only  when  the  judge  or  auditor,  at  the  conclusion  of 
the  processus  informativus,  finds  there  is  a  prima  facie  full  and 
legal  proof  of  guilt,  that  is,  such  proof  as,  if  not  overthrown 
by  the  accused  afterwards,  will  suffice  for  his  conviction, 
can    he  cite    the  accused  for  trial ;  otherwise  he   cannot ; 
and  if  he  does  nevertheless   cite   him,  he   renders  himself 
liable  to  calumnia  or  false  prosecution. ' 

217.  We  have  said  that  for  conviction  in  criminal  and  dis- 
ciplinary causes  full  proof  {probatio  plena,  probatio  legalis)  of 
guilt  is  required.     We  also  show,  in  our  Elements,  Vol.  II.,  n. 
833,  sq.,  that  as  a  rule,  two  witnesses,  who  are  above  all  ob- 
jection, constitute  full  proof  also  in  criminal  causes.      This 
is  the  rule ;  for  there  are  several  cases  where  more  than  two 
witnesses  are  required  for  conviction.     Thus,  according  to 
the  sacred  canons,  more  than  two  or  even  three  witnesses 
are  necessary,  in  criminal  and  disciplinary  causes,  for  the 
conviction    and  condemnation  of  priests   and    other   ecclesi- 
astics. a 

218.  The  reason  is  that  the  stronger  the  presumption  is  in 
favor  of  a  person,  the  greater  must  be  the  proofs  of  guilt, 
before  he  can  be  punished.     Now  ecclesiastics  are  strongly 
presumed  by  ecclesiastical  law  to  be  of  good  morals  and  to 
lead  exemplary  lives.     Another  reason  is  that,  as  Pope  Inno- 
cent III.,  in  the  Cap.  24,  de  ace.,  says:   Pastors  of  churches, 
and  ecclesiastics  in  general,  can,  in  the  legitimate  discharge 
of  their  duties,  easily  offend  ill-disposed  people,  and  thus  it 
will  not  be  difficult  to  find  a  number. of  such  persons  who 
will  readily  testify  against  rectors  and    other  ecclesiastics 
from  motives  of  revenge  or  ill-will. 

219.  Hence,  also,  laics  are  not,  as  a  rule,  competent  wit- 

1  Reiff.,  1.  5,  t.  i.,  n.  361,  362.      Bouix,  de  Jud.,  vol.  ii.,  pp.  155,  536,  sq. 

2  Can.  I.  2,  C.  2,  Q.  iv ,  vi.  ;  S.  Alph.,  1.  5,  Cap.  3,  n.  259. 

3  Fr.  Sincti,  Praelectiones  Jur.  Can.,  lib   2,  t.  2%  n    17  —  Romre,  1886. 


in  Inflicting  Repressive  Punishments.  9 1 

nesses   against   ecclesiastics,   in   criminal    and   disciplinary 
causes,  as  we  show  in  our  Elements,  Vol.  II.,  n.  828. 

220.  These    principles    of    ecclesiastical    law    are    well 
brought  out  by  the  Act  a  S.  Sedis,  and  applied  to  trials  con- 
ducted in  accordance  with  the  Instruction  of  the   S.  C.  EE. 
et  RR.  of   1880,  in  the  above  case  of  the  priest  David  A. 
against  the  Curia  of  Milan,  decided  by  the  S.  C.  C.,  April 
18,  1885.  x 

221.  Lay  persons  cannot,  as  we  have  just  said,  be  witnesses 
against  priests  and   other  ecclesiastics,  in  criminal  and  dis- 
ciplinary causes, z  also  as  tried  at  present  in  this  country, 
according  to  the  Instruction    Cum   Magnopere,  now  under 
discussion.  s     This  law  was  made  partly  on  account  of  the 
great    respect    which    laics    owe    ecclesiastics,     who    are 
ambassadors  for  Christ,  *  the  ministers  of  Christ,  and  the  dispen- 
sers of  the  mysteries  of  God  on  earth,5  the  fathers  and  teachers 
of  the  faithful. 6     See  also  our  Elements,  Vol.  II.,  n.  828. 

222.  Nor   can   it  be  objected  that  laics  may  accuse,  de- 
nounce  or   lodge   judicial   complaints    before    the    Bishop 
against  ecclesiastics,  and  that  consequently  they  are    also 
competent  to  act  as  witnesses  against  them.     The  objection 
does  not  hold.     For  the  effect  of  a  complaint  or  denunci- 
ation is  to  enable  the  Bishop  to  begin  the  judicial  inquiry, 
whereas  the  effect  of  the  testimony  of  witnesses  is  to  au- 
thorize him  to  condemn  the  accused. 7     We   have  said,  in 
criminal  and  disciplinary  causes ;  since  lay  persons  are  com- 
petent witnesses  against  ecclesiastics  in  civil  causes  pertain- 
ing to  the  ecclesiastical  forum. 8 

223.  We  have,  moreover,  said,  also  as  tried  at  present  in  our 
country,  according  to  the   Instruction    Cum   Magnopere.      The 
Ada  S.  Scdis   contends   that  the  principle  in  question  was 

1  See  Acta  S.  Sedis,  vol.  xviii.,  p.  63.  *  Cap.  14,  de  test.  (II.,  20). 

3  Our  Elements,  vol.  ii.,  n.  828.  *  II.    Cor.  v.   2O. 

6  I.   Cor.  iv.  i.  6  Can.  9,   10,  dist.  96. 

7  Schmalzg.,  1.  2,  t.  20,  n.  49.  8  Cap.  33,  de  test. ;  Schmalzg.,  1.  c. 


92       Mode  of  Proceeding  which  must  be  Observed 

clearly  brought  out  and  confirmed  in  the  above  celebrated 
case  of  the  Priest  David  versus  the  Curia  of  Milan,  decided 
by  the  S.  C.  C,  April  18, 1885.  The  trial  of  this  case,  which 
took  place  in  the  curia  of  Milan,  was  conducted  according 
to  the  Instruction  of  the  S.  C.  EE.  et  RR.,  dated  June  n, 
1880,  of  which  the  Instr.  Cum  Magnopere  is  a  copy.  Lay 
witnesses  were  allowed  to  testify  against  David  at  this  trial. 
The  Roman  advocate  contended  that  the  trial  was'  null  and 
void  on  that  account.  According  to  the  Act  a  S.  Scdis  the 
decision  of  the  S.  C.  C.  sustained  this  view.  As  the  In- 
struction Cum  Magnopere  is  the  same  as  that  of  1880,  the 
inferences  and  deductions  of  the  Acta  S.  Sedis  apply,  of 
course,  also  to  our  Instruction.  In  fact,  the  law  of  the 
Church,  as  still  in  force,  is  that  lay  people  are  not  compe- 
tent witnesses  against  ecclesiastics  in  any  judicial  proceed- 
ing or  trial,  where  there  is  question  of  inflicting  a  censure, 
punishment,  or  grave  disciplinary  correction  upon  an  ec- 
clesiastic. This  holds  true,  no  matter  whether  the  pro- 
ceedings are  per  viam  accusationis  or  inquisitionis,  and 
therefore  applies  also  to  our  trials  conducted  according 
to  the  present  Instruction.  From  this  it  will  be  seen 
that  when  we  say  in  our  Elements,  Vol.  II.,  n.  828,  that 
laics  can  testify  against  ecclesiastics,  in  case  the  proceed- 
ings are  per  viam  inquisitionis,  we  do  not  refer  to  the  case 
where  a  regular  ecclesiastical  punishment,  or  censure,  or 
grave  disciplinary  correction  is  to  be  inflicted,  but  only  to 
cases  where  a  slight  punishment,  or  a  mere  paternal  and  pre- 
ventive remedy  is  to  be  imposed. 

224.  The  above  rule  that  laics  cannot  be  witnesses  against 
ecclesiastics,  however,  has  some  exceptions,  as  we  show  in 
our  Elements  of  Ecclesiastical  Law,  Vol.  II.,  n.  828.  Thus 
laics1  can  testify  against  ecclesiastics,  also  in  criminal 


1  Provided   they  are   above  the   age  of  twenty ;     for   nobody  can   testify   in   a 
criminal  cause  who  is  under  that  age. — Our  Elements,  vol.  ii.,  n.  829. 


in  Inflicting  Repressive  Punishments.  93 

causes,  (a)  where  the  interests  of  such  laymen  are  involved. 
Thus  parishioners  can  bear  testimony  against  their  parish 
priest,  because  it  is  to  their  interest  and  spiritual  welfare  to 
have  a  good  rector. J  (b}  Where,  owing  to  time,  place  and 
circumstances,  ecclesiastics  cannot  be  had  as  witnesses. 
But  even  in  this  case,  before  laics  can  be  admitted  as  wit- 
nesses, it  is  necessary  to  prove,  not  merely  that,  as  a  matter 
of  fact,  there  were  no  ecclesiastics  actually  present  when  the 
crime  was  committed,  but  also  that  none  could  have  been 
present — v-g.,  because  the  accused  ecclesiastic  lives  and 
committed  the  alleged  offence  in  a  solitary  place,  or  in  a 
remote  country  village,  where  there  are  no  other  ecclesi- 
astics besides  himself.  This  argument  is  ably  developed  by 
the  Roman  advocate  of  the  appellant,  David  A.,  in  the  case 
decided  by  the  S.  C.  C,  April  18,  1885.' 

225.  Finally,  even  in  these  exceptional  cases,  where  laics 
may  be  admitted  as  witnesses  against  ecclesiastics,  the)*  are 
not  regarded  as  witnesses  who  are  above  all  objection  (tcstes 
omni  exccptionc  majores)  and   consequently,  no  matter  how 
numerous,  will  not  suffice  for  conviction,  unless  their  testi- 
mony is  corroborated  by  a  competent  witness  who  is  an 
ecclesiastic  of  good  fame,  or  by  other  legal  evidence.3 

226.  While  laics  cannot  be  witnesses  against  ecclesiastics, 
they  are  fully   competent,   by  the  law  of   the  Church,   to 
be    witnesses  for  them.     In  other  words,   not  only  laymen 
but  also  women  are  competent  witnesses  for  the  defence,  and 
to  prove  the  innocence  of  an  accused  ecclesiastic. 4 

1  Schmalzg.,  1.  c.,  n.  50.  -  Acta  S.  Sedis,  1.  c.,  p.  64. 

3  Schmalzg.,  1.  c.,  n.  50.  *  Ib.,  1.  c.,  n.  52. 


94       Mode  of  Proceeding  which  must  be  Observed 

ART.  XVII. 

How  the  Witnesses  arc  Examined   "  Pro  Information*  Curies" 
Before  tlie  Citation. 

XVII.  "  Personae  quae  examini  subjiciendae  sunt,  separatim  audiuntur." 

227.  We  have  seen,  under  articles  xii.  and  xv.,  that  before 
the  auditor  can  cite  the  accused,  he  must  institute  a  pro- 
cessus  informath'us,  and.  thus  gather,  in  a  judicial  manner,  all 
possible  information,    examine  witnesses,    etc.      In  fact,  in 
nearly  all  cases,  he  will  be  obliged  to  obtain  his  information 
or  proofs  by  hearing  and  questioning  competent  witnesses. 
How,  then,  does  he  examine  the  witnesses  in  the  case  ?     The 
Instruction  distinctly  says  that  the  witnesses  shall   be  ex- 
amined  separately,    that  is,  one  by  one,   apart  from   each 
other,  and  not  in  each  other's  hearing.     The  chief  object  of 
this  is  to  prevent  collusion.     They  must,  moreover,  be  ex- 
amined under  oath,  as  we  shall  see  in  the  following  article. 
See  our  Elements,  Vol.  II.,  n.  839. 

228.  We  remark  that  the  auditor  or  ecclesiastical  judge, 
or  the  diocesan    prosecutor,  must  carefully  avoid    asking 
the  witnesses  any  leading  question  (qu&stio  suggcstivd),  as  we 
show  in  our  Elements  of  Ecclesiastical  Law,  Vol.  II.,  n.  847. 
Such  questions  are   strongly  reprobated  and  strictly  pro- 
hibited by  the  law  of  the  Church. 1     For,  such  questions 
easily  cause  the  witness  to  assent  to  the  suggestion  made  in 
the  question  and  to  give  the  answer  which  is  suggested, 
and  of  which  he  never  dreamt  before,  rather  than  his  own 
statement,  for  fear  of  otherwise  displeasing  the  auditor  or 
judge.     Thus  he  will  be  led  into  making  false  statements.  - 
Hence,  if  a  leading  question  is  put  to  a  witness,  his  deposi- 
tion is  ipso  jure  null  and  void.  * 


1  L.  I,  $  21,  qni  quoestionem,   ff.  de  qucest.  (48,  18).    *  Reiff.,  1.  2,  t.  20,  n.  516. 
3  Reg.  64,  jur.,  in  6= ;  Leur.  For.  Eccl.,  1.  ii.,  t.  20,  qu.  651. 


in  Inflicting  Repressive  Punishments'.  95 

229.  The   same  rule   obtains   also   in  our  secular  courts. 
Thus  Hilliard,  in  his  Summary  of  American  Civil  Jurispru- 
dence y  p.   305,  writes  :     "  In    the  examination  of  a  witness, 
leading  questions  are  not  allowed — that  is,  questions  which 
suggest  to  him  the  answer  he  is  to  make,  or  questions  to 
which  the  simple  reply  of   "  yes  "  or  "  no  "  would  be  suffi- 
cient.    Violations  of  this  rule,  however,  are  sometimes  nec- 
essary,   in    order    to    direct    the    witness'    attention    to   the 
particular   subject  of  inquiry.      And  less    strictness  is  re- 
quired when  he  shows  an  evident  disposition  to  conceal 
the  truth   or   favor  the  other  party."      This  author,  then, 
points  out  when  leading  questions  may  be  asked  on  cross- 
examination.     His  words  are  :    "  After  the  examination-in- 
chief,  or  even  after  the  witness  has  been  sworn  but  not 
examined,    the    adverse  party    has    the  privilege  of  cross- 
examining.     And  he  may  propose  leading  questions" 

230.  This  is  also  taught  by  Walker,  in  American  Law,  p. 
633,  as  follows  :     "  The  party  who  calls  him  (witness)  first 
examines  him.      And  this  is  called  the  examination-in-chicf. 
During  this  examination,  no  leading  questions  can  be  asked  ; 
that  is,  no  questions  so  framed  as  to  indicate  the  answer 
desired.     But  the  witness  may  refresh  his  memory  as  to 
names  and  dates  by  consulting  his  own  memoranda.     The 
cross-examination  by  the  adversary  may  be  by  leading  ques- 
tions, and  as  searching  and    particular  as  he  pleases ;  for 
this  is  often  the  only  way  to  detect  a  false   witness.     But 
cross-examination  applies  only  to  the  matter  brought  out  in 
chief.     As  to  any  new  matter,  the  party  makes  the  witness 
his   own,   and  becomes   an    examiner-in-chief.      When   this 
examination    is    closed,    the   examiner-in-chief    may   cross- 
examine  as  to  any  new  matter  brought  out  on  the  other 
side.     But  he  can  bring  out  no  new  matter  himself,  because 
this  might  make  the  alternation  endless." 

231.  What  has  been  said  as  to  questions  put  to  witnesses 
holds  true,  also,  of  questions  put  to  the  accused  himself 'in  re- 


96       Mode  of  Proceeding  which  must  be  Observed 

gard  to  crime  imputed  to  him.1  Consequently,  the  auditor 
or  judge,  or  the  diocesan  prosecutor,  can  never,  in  a  crimi- 
nal trial,  when  examining  the  accused,  put  any  leading  ques- 
tion to  him.  If,  nevertheless,  the  accused  is  asked  leading 
questions,  and  is  thereby  led  into  confessing  his  guilt,  this 
confession  has  no  effect  and  does  not  suffice  for  his  condem- 
nation ;  nay,  the  entire  proceedings  are  ipso  jure  null  and 
void.2 

232.  This   whole   teaching  is  fully    brought  out  by   the 
Roman  advocate  in  the  case  decided  by  the  Holy  See,  and 
quoted  already  several  times  by  us.s      In  this  case,   which 
was  appealed  from  the  Archdiocese  of  Milan,  acting  as  the 
court  of  the  first  instance,  to  the  S.  C.  C.,  the  Roman  advo- 
cate employed  by  the  appellant,  the  Rev.  David  A.,  pointed 
out  to  the  S.  C.  C.  that  his  client  had,  in  the  curia  of  Milan, 
been  asked  leading  questions,  and  that  these  questions  had 
been  of  such  a  captious  nature  that,  no  matter  what  way  his 
client  answered,  he  would  criminate  himself  ;    that  the  wit- 
nesses against  the  accused  had,  in  like  manner,  been  asked 
leading  or  suggestive  questions.     From  this  the  advocate 
argued   that   the   entire  proceedings  were    null  and  void. 
The  Act  a  S.  Scdis  infers  that  the  Sacred  Congregation  sus- 
tained these  views  by  the  fact  that  it  reversed  the  sentence 
of  the  curia  of  Milan,  and  thus  gave  its  decision  in  favor  of 
the  accused.4 

233.  Can  a  person  ivho  bears  but  a  "slight  enmity'"  against 
tlic  accused  be  a  witness  against  hint  in  a  criminal  cause  ?     In 
our  Elements,  Vol.  II.,  n.  828,  we  show  that  one   who  is  an 
enemy  of,  or  ill-disposed  against  the  accused,   cannot  testify 
against  him.     For  such  a  person  is  easily  led  by  his  feelings 
to  make  false  statements,  in  order  to  avenge  himself  on  and 
injure  the  one  against  whom  he  bears  the  enmity  or  ill-will. 

1  See  our  Elements,  vol.  ii.,  n.  847. 

-  Reg.  64,  Jur.  in  6°;  Leur.,  1.  c.  ;    Reiff.,  1.  c.,  n.  520,  521. 
3  See  above,  article  xi.  4  Acta  S.  Sedis,  vol.  xviii.,  p.  65,  1885. 


in  Inflicting  Repressive  Punishments.  97 

Hence,  the  law  of  the  Church  presumes  his  testimony  to  be 
false.1  In  civil  causes,  the  enmity  must,  as  a  rule,  be  of  a 
grave  character  (inimicitia  gravis)  in  order  to  incapacitate  or 
exclude  a  witness.  But  in  criminal  causes, — namely,  where  a 
punishment  is  to  be  inflicted — slight  enmity  (inimicitia  levis) 
unfits  the  witness  to  testify,  so  that  if  he  is,  nevertheless, 
allowed  to  testify,  his  testimony  is  of  no  value?  According 
to  the  Acta  S.  Scdis,  this  teaching-  is  distinctly  brought  out, 
confirmed  and  applied  to  trials  as  conducted  in  accordance 
with  the  Instruction  of  June  n,  1880  (and,  therefore,  also  of 
1884),  in  the  case,  already  quoted  several  times,  of  the  priest 
David,  decided  by  the  Holy  See,  April  18,  i885-3 

234.  Another  remark  is  that  the  persons  who  make   the 
complaint,  accusation,  or  denunciation  to  the  Bishop  or  ecclesi- 
astical judge  cannot  be  witnesses  on  the  criminal  trial  which  is 
instituted  on  occasion  of  their  complaint  in  order  to  inflict 
punishment  upon  the  person  complained  of.4     This  principle 
is  also,  according  to  the  Acta  5.  Scdis,  well  brought  out  and 
confirmed   in  the  above  case  of  the  priest  David.5      The 
reason  is  that  nobody  can  be  at  the  same  time  an  accuser  or 
complainant  and  a  witness.     Moreover,  such  persons  are  re- 
garded as  showing  a  desire  to  have  the  person  punished 
against  whom  they  lodge  the  complaint,  and  as  volunteering 
their  testimony  against  him.     Now,  persons  of  this  kind  are 
inadmissible  as  witnesses,  as  we  show  in  our  Elements,  Vol. 
II.,  n.  836.     Finally,  one  who  lodges  a  complaint  is  put  on 
the  same  footing  with  an  accuser   (accusator)   or    plaintiff 
(actor).     Now  a  plaintiff  should  prove  his  accusation  not  by 
his  own  testimony  (for  that  would  be  giving  testimony  in 
his  own  cause),  but  by  the  testimony  of  others.6 

235.  Here  it  should  be  observed  that  the  testimony  of  the 

1  Can.  si  testes,  §.  testium  fides,  c.  4,  q.  3;     Reiff.,  1.  2.,  t.  20,  n.   132. 

2  Ib.,  1.  c.,  n.   136.  *  Acta  S.  Sedis,  vol.  xviii.,  p.  65. 
4  Schmalzg.,  1.  2,  t.  20,  n.  64.  5  Acta  S.  Sedis,  vol.  xviii.,  p.  65. 

6  Leur.,  For.  Eccl.,  1.  2,  t.  20,  qu.  585. 


98        Mode  of  Proceeding  which  must  be  Observed 

witnesses,  even  though  there  are  more  than  a  thousand,  thus 
examined  by  the  auditor  or  judge,  in  the  proccssus  informa- 
tivus,  prior  to  the  citation  of  the  accused,  and,  therefore,  in 
his  absence,  or  as  the  technical  phrase  is,  nondum  citato  et 
constituto  reo,  is  simply  regarded  as  information  which  may 
authorize  the  curia  to  issue  the  citation,  but  can  never,  of 
itself,  have  the  force  of  legal  or  canonical  proof  sufficient 
for  conviction  or  condemnation.  For  the  law  of  the  Church 
enacts,  as  we  have  seen,  that  the  testimony  or  evidence 
which  is  submitted,  has  legal  force  only  when  it  is  produced 
before  the  ecclesiastical  judge,  after  the  lit  is  contcstatio,  and 
therefore  after  the  citation  of  the  accused,  and  in  his  pres- 
ence. 

236.  Consequently,  while,  according  to  the  universal  prac- 
tice of  ecclesiastical  courts,  the  witnesses  for  the  information 
of  the  curia — -pro  informatione  curies — are  admitted  and  exam- 
ined, as  soon  as  the  charge  has  been  handed  in  by  the  dioc- 
esan   prosecutor,  and  that,  non  citata  parte,  that  is,  before 
the  accused  is  cited,  and,  therefore,  in  his  absence,1  yet  their 
deposition  will  not  have  the  force  of  legal  proof,  at  least  of 
itself.     We  say,  at  least  of  itself ;  that  is,  unless  it  is  ratified 
or  accepted  by  the  accused.      Hence,  if  the  accused,  after 
being  cited,  refuses  to  declare  that  he  considers    the  wit- 
nesses, who    were    examined  prior  to  his  citation,  in  the 
proccssus    inforuiativus,    properly   and    lawfully    examined, 
it  will  become  necessary  to  repeat  their  examination  after 
the  citation  of   the  accused,  that  is,  citata  parte  or  constitute? 
reo.     Otherwise  the  testimony  will  have  no  legal  force  what- 
ever.2 

237.  The  witnesses  who  are  produced,  or  who  repeat  their 
testimony  after  the  citation  of  the  accused,  must  be  exam- 
ined in  the  same  manner  as  in  the  processus  informativus — to 
wit,  separately,  under  oath,  etc.     As  to  the  manner  in  which 

1  Pellegr.,  p.  iv.,  sect,  iv.,  n.  3.  -  Ib.,  sect,  ix.,  n.  I,  2,  3. 


in  Inflicting  Repressive  Punishments.  99 

the  questions  are  put  to  and  the  answers  given  by  the  witness, 
in  this  repetition,  see  the  formula  given  in  Pellegrino,  P. 
IV.,  Sect,  xi.,  n.  41,  p.  417.  Suffice  it  here  to  say,  that  the 
questions  must  be  put  to  and  answered  by  them,  as  though 
they  had  not  given  any  testimony  before.1 

238.  Questions  p2it  to  the  witnesses, — First,   certain  general 
questions   are  asked,  to  find  out  the  age,  occupation,  resi- 
dence, etc.,  of  the  witness.      These  should  not  be  omitted, 
even  though  the  facts  to  be  elicited  by  them  are  well  known 
to  the  judge  ;  for  these  facts  are  not  merely  for  the  infor- 
mation of  the  judge  of  the  first  instance,  but  also  for  that  of 
the  higher  judge  to  whom  an  appeal  may  be  made.2 

239.  Next,  specific  questions  relating  to  the  cause  are  ad- 
dressed  to  the  witness.      As  to  the  order  in  which  these 
questions  should  follow  one  another,  see  our-  Elements,  Vol. 
II.,  n.  846,  847.    See  also  the  formula  of  examining  witnesses 
which  we  subjoin  in  the  appendix.     In  these  forms,  as  given 
by  Bouix3  and  Reiffensteul,4  it  will  be  noticed  that  the  first 
specific  question   is :     "  An   sciat   articulum    esse  verum  ? " 
That  is,  do  you  know  whether  the  count  or  specification 
(articulus)  just  read  to  you  is  true  ?     To  enable  the  reader  to 
understand  this  better,  it  is  necessary  to  recall  to  mind  that 
when  the  trial  is  per  viam  accusationis,  or  dcnunciationis,  or 
inquisitionis   ad  instantiam  procuratoris  fiscalis?  the  accuser, 
denouncer,   or  diocesan  prosecutor  presents,  as    a    rule,  a 
libellus  articulatus,  that  is,  a  specific  bill  of  charges,  or  one 
which  not  only  states  the  charge,  but  also  enumerates,  under 
distinct  heads,  the  various  specifications  or  counts  (articitli) 
of  the  charge.     See  our  Elements,  Vol.  II.,  n.  988. 

240.  Here,  then,  it  may  be  asked  :  Can  the  judge,  auditor 
or  diocesan  prosecutor  begin  the  special  interrogatory  by 


Pellegr.,  p.  iv.,  s.  xi.  -  Reiff.,  1.  5,  t.  i.,  n.  373. 

3  De  Jud.,  vol.  ii.,  p.  539.  4  L.  5,  t.  i.,    n.  380. 

6  This  latter  mode  is  the  one  prescribed  by  our  Instruction. 


TOO     Mode  of  Proceeding  which  must  be  Observed 

reading  to  the  witness  the  specification  upon  which  he 
wishes  to  examine  him,  and  asking  him  whether  he  knows 
it  to  be  true  ?  It  is  certain  that  the  judge  cannot  do  so, 
when  he  proceeds  to  a  special  judicial  inquiry  ex  inero 
officio.  For,  in  the  case,  the  question  would  be  a  leading 
question,  as  the  judge  or  prosecutor,  by  the  very  fact  of  put- 
ting such  a  question  in  the  very  beginning  of  the  examination 
and  before  having  asked  questions  more  general,  would 
plainly  indicate  or  suggest  the  desired  answer.1 

241.  Does  the  same  hold  true,  when  the  trial  is  conducted 
per  viam  accusationis,  or  as  in  our  case,  per  viam  inquisitionis 
ad  instantiam  procuratoris  fiscalis?     There  are  two  opinions. 
Reiffenstuel  holds  the  negative  and  says  that,  in  the  case,  the 
special  interrogatory  is  begun  thus :  The  specification  upon 
which  the  witness  is  to  be  examined  is  first  read  to  him  ;  and 
he  is  then  forthwith  asked  whether  he  knows  it  to  be  true.- 
Afterwards  the  other  questions  are  put.     The  reason  upon 
which  he  bases  his  opinion  is,  that  under  the  circumstances 
the  question,  even  though  asked  in  the  beginning,  is  not  a  lead- 
ing question,  since  the  crime  and  the  criminal  are  already  judi- 
cially manifested  by  the  proceedings  that  have  gone  before. 

242.  The  affirmative,  however,  is  the  opinion  commonly 
held  by  canonists.     For,  as  we  have  seen,  they  teach  unani- 
mously that  the  judge  or  prosecutor  can,  in  no  case,  ask 
any  question  that  indicates  the  desired  answer.     Now  it  is 
plain  that  by  asking  the  witness  forthwith,  and  in  the  begin- 
ning of  the  special   interrogatory,   whether  he  knows  the 
specification   to   be  true,  he  suggests  thereby  the  answer. 
Consequently,  as  we  say  in  our  Elements,  Vol.  II.,  n.  847,  the 
examination  of  the  witnesses  must,  also  according  to  the 
Instruction  Cum  Magnopere,  be  by  general  questions,  ascend- 
ing gradually  to  the  more  particular  facts  in  the  case.     See 
the  formula  given  by  Bouix,  cle  Jud.,  Vol.  II.,  p.  537;  Reiff., 
lib.  5,  t.  i,  n.  372,  sq. 

1   Reiff.,  1.  5,  1.  c.  I,  n.  377.  :  Ib.,  n.  380. 


in  Inflicting  Repressive  Punishments.  101 

ART.  XVIII. 

TJie  OatJi  taken  by  the  Witnesses,  and  by  Others  ivJio  take  any 
Part  in  the  Trial. 

XVIII.  "  Testes  ad  probationem,  sive  ad  defensionem,  si  legalia  imped- 
imenta id  non  prohibeant,  audiantur  praestito  juramento  de  veritate  dicenda 
et  si  res  postulet,  etiam  de  secreto  servando.  Itaque  antequam  testificen- 
tur,  cum  de  veritate  turn  de  secreto  jurent.  Eo  magis  de  officio  fideliter 
adimplendo  et  de  secreto,  pro  rei  de  qua  agitur  exigentia,  servando 
omnes  juramento  abstricti  sint  oportet,  qui  in  instructione  processus  ex 
suo  munere  partem  aliquam  habeant." 

243.  The  auditor  or  judge  conducting  the  compilatio  pro- 
cessus must  not  only  hear  the  witnesses  one  by  one,  as  ex- 
plained above,  but  he  is,  moreover,  obliged  to  administer  the 
oath  to  them,  and  that  in  the  informative  process  which  takes 
place  prior  to  the  citation  and  therefore  nonduin  constitute 
reo,  as  well  as  after  the  citation  of  the  accused.1     This  is  in 
accord  with  the  general  law  of  the  Church,  which  declares 
the  testimony  of  witnesses  null  and  void,  unless  it  is  given 
under  oath,  as  we  show  more  fully  in  our  Elements,  Vol.  II., 
nos.  840,  sq.     The  Instruction  enacts  that  the  witnesses  shall 
not  only  swear  that  they  will  tell  the  truth,  but  also,  if  need 
be,  that  they  will  not  divulge  their  testimony.2 

244.  In  the  Instruction  of  July  20,  1878  (§  n.  Singuli ;  Cf. 
our  Elements,  Vol.  II.,  n.  843),  it  was  prescribed  that  the  oath 
should  not  be  administered  to  the  witnesses.     The  law  was 
perhaps  made,  owing  to  the  fact  that  the  administering  of 
oaths  by  ecclesiastics  was  considered  contrary  to  the  law  of 
our  country.     We  show,  in  our  Elements,  Vol.  II.,  nos.  1344, 
1345,  1426,  and  on  page  444,  that  the  laws  of  the  United 
States,  whether  state  or  federal,   are  perfectly  neutral  and 
indifferent  in  regard  to  oaths  administered  by  Bishops  and 
ecclesiastical    superiors.      Consequently   the    ecclesiastical 
judge  is  perfectly  free,  with  us,  to  administer  oaths  to  wit- 

1  Cf.  Bouix,  de  Jud.,  vol.  ii.,  p.  520.  2  Our  Elements,  1.  c.,  n.  845. 


IO2       Mode  of  Proceeding  which  must  be  Observed 

nesses  and  others  taking  part  in  the  trial.  As  a  matter  of 
fact,  in  all  the  ecclesiastical  trials  of  Protestant  denomina- 
tions in  this  country,  the  oath  is  always  administered  to  the 
witnesses  and  others  taking  part  in  the  proceedings.  And 
yet  no  one  has  ever  said  that  this  was  against  the  laws  of 
the  land. 

245.  The  Instruction,  therefore,    rightly  assumes,    in    the 
present  article,  that  there  are  no  legal  obstacles  in  the  way 
of  administering  the  oath  in  our  ecclesiastical  trials,  and 
consequently  makes   the   oath    obligatory,  not   only    upon 
witnesses,  but  also  upon  all  who  take  any  part  in  the  trial  by 
virtue  of  their  office.     Consequently,  besides  the  witnesses 
and  experts,  the  following  officials  must  also  take  the  oath  : 
The  auditor,  the  diocesan  prosecutor  and  his  assistant,  if  he 
has  any ;  the  secretary  ;  the  messenger  of  the  court,  if  there 
is  one.     These  officials  must  swear  that  they  will  discharge 
their  duties  faithfully,  and  also,  if  the  case  requires,  to  main- 
tain secrecy  concerning  the  proceedings.     Where,  by  Papal 
dispensation,    commissions     of    investigation    continue    to 
exist  ad.  interim,  their  members  must  take  the  same  oath.1 
The  oath  is  obligatory  on  all  the  above  persons,  on  pain  of 
nullity  of  the  proceedings,  even  of  the  informative  process. 
Hence  they  must  take  the  oath  before  the  beginning  of  the 
processus  informations  which  precedes  the  citation.     For  the 
form  of  this  oath,  see  Monacetli  Form.,  P.  I.,  pp.  245,  247. 

246.  The  advocate  of  the  accused  may  also  be  obliged  by 
the  judge  to  swear  that  he   will   maintain  secrecy,   if  the 
judge  thinks  that  the  nature  of  the  case  on  trial  demands 
it.' 

247.  In  England,   Ireland,  and  perhaps  in  the  other  do- 
minions of  the  British  Empire,  it  is  forbidden  by  the  civil 
law  for  any  one  to  administer  an    oath,  except  he  be  au- 
thorized by    law    to  do    so,  as  we    show  in    our  Elements, 

1  Instr.,  art.  xii.  -  Ib.,  art.  xxxii. 


in  Inflicting  Repressive  Punishments.  103 

Vol.  II.,  p.  444.  Consequently  it  would  there  be  an  illegal 
and  punishable  act  for  a  Bishop  to  administer  an  oath  to 
witnesses  or  others  in  ecclesiastical  trials.  In  prescribing 
the  oath,  as  explained  above,  the  Instruct™  and  the  sacred 
canons  are  in  full  accord  with  the  laws  of  the  secular  au- 
thorities all  over  the  world.  Thus,  so  far  as  concerns  the 
United  States,  Hilliard  writes : a  "  To  secure  the  veracity 
and  to  determine  the  ability  and  knowledge  of  witnesses,  the 
law  has  provided  two  general  tests,  viz :  an  oath  and  cross- 
examination." 

ART.  XIX; 

How  Witnesses  are  Examined  ivho  are  in  a  Distant  Part  of  the 
Diocese,  or  out  of  it    altogether. 

XIX.  "Testes  qui  in  locis  longe  dissitis  vel  in  aliena  dioecesi  degunt, 
mediante  auctoritate  ecclesiastica  loci  in  quo  manent,  examinentur,  in 
quern  finem  specimen  factorum  transmittetur :  quae  quidem  auctoritas  in 
responsione  normas  in  hac  Instructione  contentas,  observabit." 

248.  Sometimes  the  auditor  or  ecclesiastical  judge  con- 
ducting the  trial  or  "  compilatio  processus,"  finds  that  the 
witnesses,  who  are  to  be  examined,  whether  during  the  in- 
formative process  which  takes  place  prior  to  the  citation  of 
the  accused,  or  during  the  process  which  follows  the  ci- 
tation, are  indeed  in  the  diocese,  but  too  far  away  to  come 
without  great  expense,  inconvenience  and  delay,  or  that 
they  are  in  a  different  diocese.  The  Instruction  enacts,  in 
the  present  article,  that  in  the  first  case,  the  witnesses  shall 
be  examined,  (a)  in  the  place  where  they  are,  (b)  and  that  by 
an  ecclesiastic  living  there  or  near  by — v.g.,  by  the  rural 
dean — to  be  delegated  by  the  judge  to  that  effect.  For 
the  formula  of  delegation,  see  Bouix,  de  Jud.,  Vol.  II.,  p. 
529.  The  letter  of  delegation  is  called  litter cs  commissionales. 
Bouix  (1.  c.,  p.  528)  teaches  that  witnesses  of  the  diocese 

1  Summary  of  American  Jurispr.,  p.  301. 


IO4     Mode  of  Proceeding  wJiich  nmst  be  Observed 

may  be  thus  examined,  not  only  when  they  are  far  away 
from  the  curia,  but  also  when  they  are  nearby,  but  when 
the  judge  considers  it  inopportune  to  cite  them  to  come  to 
the  curia. 

249.  In  the  second  case,  namely,  when  the  witnesses  are 
in  a  different  diocese,  the  Instruction  directs  that  they  shall  be 
examined  by  the  ecclesiastical   authority    of   such  diocese — 
that  is,  by  the  Bishop,  Vicar-general,  or  his  delegate.     For 
this  purpose,  the  Bishop,  Vicar-general,  or  auditor  writes 
to  the  Bishop  or  Vicar-general  of  the    place,  where  they  are, 
requesting  him  to  examine  the  witnesses.     For  the  formula 
of  this  letter,  which  is  styled  littcrcs  rcmissoriales,  see  Bouix, 
1.  c.,  p.  527. 

250.  In  both  cases,  however,  the  curia  is  obliged  to  send, 
together  with  its  request  for  the  examination  of  the  wit- 
nesses, a  summary  statement  of  the  facts  in  the  case,  and 
also  the  questions  to  be  put  to  the  witnesses.      The  eccle- 
siastic thus  deputed,  or  the  authority  thus  requested,  will 
examine  the  witnesses  in  the  manner  laid  down  in  the  In- 
struction, and,  consequently,  with  the  assistance  of  a  notary 
to  take  down  the  depositions,  one  by  one,  under  oath.1 

251.  Observe  that,  as  Pellegrino  correctly  says,  this  mode 
of  examining  witnesses  who  are  absent,  or  distant,  or  out 
of  the  diocese,  applies  not  merely  to  witnesses  for  the  pros- 
ecution, but  also  to  those  of  the  defence.2      Hence,  if  the 
accused  asks  that  witnesses  in  his  favor,  who  are  far  away, 
or  live  in  a  different  diocese,  be  examined  as  above,  the 
Ordinary  or  judge  is  bound  to  comply  with  his  request,  and 
act  according  to  article  xix.   of  the  Instruction.     Otherwise, 
an  appeal  would  lie  against  his  refusal.3 

252.  Q.    Has  the  opposite  party — i.e.,  the  party  against 
whom  the  witnesses  are  produced,  a  right  to  be  present  at 


1  Cf.   Pellegr.,  p.   iv.,  sect,  iv.,  n.  90.  -  Ih. ,  n.  65,  66. 

3  Ib.,  n.  66. 


in  Inflicting  Repressive  Punishments.  105 

the  examination  of  the  above  witnesses,  who  are  either  dis- 
tant or  out  of  the  diocese  ? 

A.  We  must  distinguish  :  These  witnesses  are  examined 
either  during  the  informative  process  which  precedes  the 
citation,  or  during  the  trial  proper  which  follows  the  cita- 
tion of  the  accused.  In  the  first  case,  namely,  when  they 
are  examined  prior  to  the  citation,  the  opponent — i.e.,  the 
defendant,  has  no  right  to  be  present  either  verbally  or  per- 
sonally, since  the  examination  is  merely  for  the  information 
of  the  court.  But,  in  this  case,  the  depositions  have  no 
value  as  legal  proof  of  guilt,  unless  they  are  afterwards 
legalized,  as  we  shall  explain  under  article  xxvi.  Conse- 
quently, if  the  accused  desires  it,  these  witnesses  must  repeat 
their  testimony,  after  the  citation  of  the  accused,  and  then  the 
latter  has  the  right  to  be  present  either  verbally  or  personally 
at  their  examination,  as  we  shall  explain  below  in  article 
xxvi.  See  also  our  Elements,  Vol.  II.,  n.  838,  sq. ;  n.  1117. 

253.  In  the  second  case,  namely,  where  the  examination 
takes  place,  Constitute  jam  rco,  or  after  the  citation  of  the 
accused,  the  opponent  (i.e.,  either  the  diocesan  prosecutor 
or  the  accused  and  his  advocate)  has  always  a  right  to  be 
present,  either  verbally  or  personally,  as  we  show  below  in 
article  xxvi.,  and  our  Elements,  1.  c. 

254.  Witnesses    examined  "  ad  pcrpctuam    memoriam" — In 
connection  with  the  examination  of  witnesses  who  are  far 
off,  or  in  a  different  diocese,  it  may  not  be  amiss  to  discuss 
here  the  practical  case  of  what  is  called  the  examination  of 
witnesses  in  pcrpctuam  rei  mcmoriam.     As  a  rule,   witnesses 
cannot   be   produced   before    the  ecclesiastical   judge    and 
examined,  with  any  legal  effect,  that  is,  in  such  a  manner 
that  their  deposition  will  have  the  force  of  legal  proof  of 
guilt  or  innocence,  until  after  the  accused  has  been  cited, 
and  the  litis  contcstatio   taken  place.1     The  reason  is,  that 

1  Cap.  Quoniam  5,  ut  lit.  non.  cont.  (II.  6). 


1 06     JMode  of  Proceeding  which  must  be  Observed 

the  testimony  of  witnesses  and  all  other  evidence  has  no 
legal  or  canonical  force  of  proof,  except  it  (a)  be  produced 
during  the  trial,  and  (b)  touches  on  matters  which  are  prop- 
erly in  court ;  for  the  judge  can  pronounce  sentence  only 
secundum  allegata  et  probata  in  judicio.  Now  no  cause  or 
matter  is  considered  as  being  in  court  or  on  trial,  until  the 
lit  is  contestatio  has  taken  place.1  Hence,  also,  as  we  have 
seen,  the  deposition  of  witnesses  in  the  United  States,  ad- 
mitted and  examined,  even  though  under  oath,  by  the 
auditor,  in  the  informative  proceedings  prior  to  the  citation, 
has  simply  the  force  of  informing  him  whether  he  can  issue 
the  citation  or  not,  but  not  the  force  of  legal  or  canonical 
proof,  sufficient  for  conviction  and  condemnation. 

255.  We  say,  as  a  rule.     Now  this  rule,  as  all  rules,  has  its 
exceptions.     Thus  an  accused  person  or  a  defendant  can,  at 
any  time,  and  before  the  trial  or  the  litis  contestatio,  and  in 
all  causes,  not  only  civil,  but  also  criminal  and  disciplinary, 
produce  before  the  ecclesiastical  judge  any   witnesses  he 
may    choose,  and    have  them    examined  ad  perpetuam  vic- 
moriam,  and  in  futuram  sui  defensionem, z  so  that  their  deposi- 
tion will,  upon  being  published  or   communicated   to   the 
adverse  party  after  the  litis  contestatio,  or  joining  of  issue, 
have  the  same  effect  as  though  it  had  been  taken  after  the 
litis  contestatio. 

256.  We  say  at  any  time :  that  is,  the  accused  can  produce 
his  witnesses  ad  perpetuam  mcmoriam,  (a)  not  merely  when 
he  is  actually  about  to  be  put  on  trial,  but  also  when  he  is 
merely  afraid  lest  he  may  be  called  to  trial  at  some  future 
time;    (b)  nor  simply  when  there  is  danger  that  the  evi- 
dence will  be  lost — v.g.,  because  the  witnesses  are  in  danger 
of  death  by  reason  of  sickness,  old  age,  etc.,  but  also  when 
there  is  no  such  cause. 


1  Cap.  unic.  de  lit.  cont.  (II.  5)  ;  De  Angeiis.  1.  2.,  t.  6,  n.  2. 
2  Schmalzg.,  1.  2,  t.  6,  n.  3. 


in  Inflicting  Repressive  Punishments.  107 

257.  Herein  the  defendant's  condition  is  more  favorable 
than  that  of  the  plaintiff  or  prosecutor,  whether  official  or 
private.     For  the  latter  (actor)  can  have  his  witnesses  ex- 
amined ad  pcrpetnam  memoriam,  prior  to  the  plea  or  lit  is 
contcstatio,  (a)  only  when  there  is  danger  that  the  testimony 
will  be  lost  before  the  litis  contestatio  has  taken  place ;  for 
instance,  when  the  witnesses  are  old,  or  sick,  and  therefore 
likely  to  die  ;  or  when  they  are  about  to  move  far  away  ;  (b) 
and  even  then,  only  jn  civil,  not  in  criminal  and  disciplinary 
causes. 

258.  The  reason  of  the  more  favorable  condition  of  the 
accused  is,  that  it  is  not  in  his  power  to  be  put  on  trial 
when    he  is  ready  or  when  he    chooses,    while    the  com- 
plainant or  prosecutor  can  choose  his  own  good  time  and 
bring  on  the  trial  at  such  time  as  is  most  convenient.     If, 
therefore,  the  accused  could  not  present  his  witnesses  for 
the  examination,  until  after  his  citation,  and  the  litis  contes- 
tatio, it  is  manifest  that  the  plaintiff  or  prosecutor  could 
maliciously  delay  the  trial  and  the  litis  contestatio  until  the 
witnesses  for  the  accused  or   defendant   had   either   died, 
moved   far  away,  or  gone  out  of  reach,  and  thus   deprive 
him  of  his  legal  proofs  and  legitimate  means  of  defence. 

259.  Application  of  the  above  principles  to  the  U.  S. — From 
what  has    been    said,    it    follows   that    also,  according    to 
the    present    Instructio,  the   accused  in   the   United  States 
can    have  his    witnesses  examined  ad  perpetuam  memoriam 
by    the    ecclesiastical   judge   at   any   time   and    before  the 
trial.     In  order  that  the  accused  may  be  able  to  produce 
witnesses,    and   that  the   ecclesiastical   judge  may    be  able 
and  obliged  to  examine   them  prior  to  the  litis  contestatio, 
nothing  more  is  required,  as  we  have  seen,  than  that  the 
accused  should  be  actually  about  to  be  tried,  or  that  he 
should  fear  lest  he  may  be  called  to  trial  at  some  future 
time.       If    the    ecclesiastical    judge    refuses  to    admit   the 
witnesses,  an  appeal  lies  to  the  higher  ecclesiastical  judge. 


1 08     Mode  of  Proceeding  which  must  be  Observed 

It  follows,  moreover,  that  the  diocesan  prosecutor,  with 
us,  can  indeed  have  his  witnesses  examined,  prior  to  the 
"  litis  contestatio,"  for  the  information  of  the  court ;  but 
the  testimony  in  the  case  will  not  have  the  force  of  legal  proof 
of  guilt,  since  the  prosecutor  has  no  right  whatever  to  have 
his  witnesses  examined,  ad  perpctuam  mcnioriavi,  in  criminal 
and  disciplinary  causes,  as  noted  above. 

260.  Q.  In  what  manner  are  witnesses  examined  in  perpet- 
uam  memoriam  ? 

A.  In  the  same  manner  as  that  laid  down  above,  in 
articles  xvii.  and  xviii.,  for  the  examination  of  witnesses  in 
general.  Accordingly,  when  an  accused  person  also  with 
us  requests  witnesses  to  be  examined  ad pcrpetnam  memoriamy 
the  mode  of  procedure  is  this:  The  Bishop  or  Vicar- 
general  presides  at  the  examination,  or  deputes  an  auditor 
to  do  so.  The  witnesses  are  cited  if  need  be.  On  the  day 
appointed,  they  are  examined,  either  by  the  judge  himself, 
or,  with  his  permission,  by  the  accused  or  his  advocate,  and 
that  one  by  one,  under  oath,  and  in  the  presence,  personal 
or  verbal,  of  the  diocesan  prosecutor,  who  has  the  right  to 
cross-examine.  The  entire  testimony  must  be  taken  down 
by  the  secretary  or  chancellor.  In  those  causes,  namely,  in 
civil  causes,  where  the  plaintiff  has  a  right  to  have  witnesses 
examined  ad  pcrpetuam  memoriam,  the  defendant  must  be 
notified  to  be  present,  either  in  person,  or  to  send  his  in- 
terrogatories.1 Cf.  our  Elements,  Vol.  II.,  n.  837,  844. 

1  Schmal/g.,  1.  c.,  n.  12. 


in  Inflicting  Repressive  Punishments.  109 

ART.  XX. 
Admissibility  of  Hearsay,  or  Indirect   Witnesses. 

XX.  "  Si  indicentur  testes,  qui  de  factis  vel  circumstantiis  ad  meritum 
causae  substantiale  spectantibus  interrogandi  essent,  nee  examinari  pos- 
sint,  vel  quia  non  licet  aut  decet  eos  citare  in  judicium,  vel  quia  rogati 
adesse  recusent,  necesse  est  id  in  actis  commemorate,  eorumque  deficien- 
tia  suppletur  testimoniis  aliorum,  qui  vel  de  relato  vel  aliter  rem  de  qua 
quaeritur,  noverint." 

261.  It  may  sometimes  happen,  especially  at  the  present 
day,  that  the  auditor  or  ecclesiastical  judge,  either  in  his 
informative  inquiry,  prior  to  the  citation,  or  in  the  proceed- 
ings which  follow  the  citation,  will  find  that  witnesses  are 
mentioned  as  being  personally  and  directly  cognizant  of  the 
substantial   facts  in  the  case,  and  who  yet  cannot  be  ex- 
amined, either  because  it  is  unlawful  or  unbecoming  to  call 
them  as  witnesses — v.g.,  when  they  are  wicked  or  adverse 
to   the   Catholic   Church   and    would   gladly    divulge    the 
offences  of  ecclesiastics,  if   occasion  offered  itself1 — or  be- 
cause they  have  been  cited  or  asked  to  come  as  witnesses, 
and  yet  have  refused  to  do  so.     What  is  to  be  done  in  this 
case?     The  Instruction  prescribes  that  the  auditor  or  judge 
shall    cause   the   notary    to  record  the  above  facts  among 
the  minutes  of  the  cause,  and  then  endeavor  to  gain  the 
requisite  information  from  others,  who  know  the  facts  not 
from  personal  or  direct  knowledge,  but  (a)  from  hearsay, 
de  relato — i.e.,  from  rumor,  or  from   other  persons  who  are 
personally  cognizant  of  the  facts,  (b)  or  in  any  other  way. 

262.  In  order  to  understand  this  article  more  fully,  it  is 
necessary    to    observe    that  witnesses   are    of  two  kinds : 
(a)  those  who  have  a  personal  and  direct  knowledge  of  the 
facts — v.g.,  those  who  testify  to  what  they  have  directly  seen 
with  their  own  eyes  or  heard  with  their  own  ears ;    they  are 
called  testes  de  scientia  :  (&)  those  who  have  a  knowledge  of 

1  Acta  S.  Sedis,  vol.  xv.,  p.  389. 


no     Mode  of  Proceeding  which  must  be  Observed 

the  facts  in  the   case  from  sources  other   than   their   own 
senses  and  therefore  possess  but  an  indirect  knowledge. 

263.  These   latter   witnesses    are   subdivided    into   three 
classes  :    i.   Testes  de  credulitate — i.e.,  those  who  testify  under 
oath  that  they  believe  a  thing  to  be  true,  not  indeed  because 
they  have  seen  the  offence  or  act  itself,  but  because  they 
have  seen    certain  suspicious  facts  or  things  which    lead 
them  to  infer  and  believe  that  a  certain  thing  is  true,  or 
that  a  certain  crime  has  been  committed.     Such  are  wit- 
nesses who  testify  that  they  have  seen  "  solum  cum  sola,  et 
nudum  cum  nuda  in  eodem  lecto,"  and  that  therefore  they  be- 
lieve that  these  parties  have  committed  adultery.     2.   Testes 
de  auditu  alieno — i.e.,  those  who  testify  under  oath  that  they 
have  heard  a  certain  fact  from  other  persons  worthy  of   be- 
lief.    3.   Testes  de  fama,  or  those  who  testify  under  oath  that  a 
certain  commjon  fame  or  public  opinion  is  spread  among  the 
people.1     We  shall  say  a  few  words  in  regard  to  each  of  the 
three  classes. 

§  I.    Witnesses  "  de  Credulitate.'" 

264.  Q.  When    are    witnesses    de    credulitate   admissible, 
and  what  force  has  their  testimony,  in  case  they  can  and 
are  admitted,  also  according  to  the  present  Instruction  ? 

A.  The  rule  is  that  they  are  not  to  be  admitted  as  wit- 
nesses and  do  not  prove  anything,  especially  in  criminal 
and  disciplinary  causes.2  The  reason  is  that  they  base 
their  belief  on  conjectures,  presumptions,  or  suspicions,  but 
not  on  personal  knowledge.  Now  these  conjectures,  sus- 
picions and  indications  of  facts  or  of  guilt  may  indeed  point 
more  or  less  strongly  to  the  guilt.  But  they  nevertheless 
remain  mere  suspicions  and  indications.  Consequently  they 
cannot,  no  matter  how  numerous,  remove  all  reasonable 
doubt  of  guilt.  Hence  they  cannot  give  that  moral  cer- 

1  Santi,  1.  c.,  1.  2,  t.  20,  n.  28.  *  Reiff.,  1.  2,  t.  20,  n.  348,  sq. 


in  Inflicting  Repressive  Punishments.  1 1 1 

tainty  which  is  necessary,  also  according  to  our  Instruction, 
for  conviction. 

265.  We  say,  the  rule  is,  for  these  witnesses  are  admissi- 
ble  also  in  criminal   causes   (a)   when  they   are  produced 
for  the  defence   of  the  accused — i.e.,  in  order   to   testify  to 
his  innocence ;  1  (b)  when   there   is   question  of  crimes — v.g., 
fornication,    which    are    usually    committed    in    so  secret 
a  manner  as  not  to  be    witnessed  directly  by  any   third 
party.     For  direct  witnesses  can  scarcely  ever  be  obtained 
in  these  cases.      Consequently,  unless   indirect    testimony 
were  admitted,  such  crimes  could  never  be  proved.2     This 
teaching  is  also  clearly  contained  in  our  Instruction.    For  the 
present  article  indicates  that  witnesses  of  this  kind  can  be 
admitted  only  where  direct  witnesses  cannot  be  had. 

266.  But  even  in  this  second  case,  where  such  witnesses 
are  admissible  against  the  accused,  their  testimony  is  worth 
neither  more  nor  less  than  are  the  conjectures,  signs,  indica- 
tions upon  which  they  base  their  belief.     Thus,  if  they  testi- 
fy to  very  violent  indications  of  guilt — v.g.,  if  they  state  that 
they  saw  nudum  cum  nuda  in  eodum  Iccto,  and  therefore  believe 
the  parties  to  be  guilty  of  fornication,  their  testimony  at 
least,  if  sufficiently   corroborated  by    their  circumstantial 
evidence,  constitutes,   according    to    some    canonists,    full 
proof  of  guilt, 3  according  to  others,  only  a  presumption  of 
guilt.     See  our  Elements,  Vol.  II.,  n.  880. 

§  2.    Witnesses  "  de  Auditu  Alieno." 

267.  Here  the  following  questions  present    themselves  : 
First,  when  are  these  witnesses  de  anditu  alicno  admissible, 
in  criminal  and  disciplinary  causes,  also  according  to  the 
present  Instructio  ?     Second,  what  is  the  value  of  their  testi- 
mony, where  they  are  admissible  ? 

1  Cap.  quoties,  et  Cap.    de  tcstibus,  de  Purg.  can.  Reiff.,  1.  2,  t.  20,  n.  353. 
2  Reiff.,  1.  c.,  n.  350,  sq.  3  Santi,  1.  e,  1.2,  t.  20,  n.  30. 


1 1 2     Mode  of  Proceeding  which  must  be  Observed 

268.  In  answer  to  the  first  question,  we  remark,  these 
witnesses    are    admissible  (a)  as  witnesses  for    tJic  defence, 
that  is,   they   are  always  allowed  to  testify  in  fai-or  of  the 
innocence  of  the  accused ;  1  (&)   they  are  admissible  against  the 
accused,  only  when  the  eye  or  ear-witnesses  from  whom 
they  have  received  their  information  cannot  be  had — v.g., 
where  they  are  dead,  or  out  of  reach  physically  or  morally, 
namely,  when  they  are  too  far  away  or   refuse  to  testify. 
This   holds   so   true    that   if  the  prosecutor  attempted    to 
produce  witnesses  de  auditu  alieno,  even  where  the  direct 
witnesses  are  alive  and    can    be    produced,    he    would    at 
once  lay    himself  open  to  suspicion.2     Consequently,  also, 
the  party  producing  such  witnesses  must  prove,  not  merely 
state,  that  the  eye  or  ear-witnesses  cannot  be  had. 

269.  As  to  the  second  question,  namely,  what  is  the  value 
of  the  testimony  of  these  witnesses,  where  they  are  admis- 
sible, also  in  criminal  and  disciplinary  causes  with  us,  we 
answer  that  these  witnesses  are  not  witnesses  in  the  proper 
sense   of  the  term,  and  no  matter  how  numerous,  do  not 
prove  anything  against  the  accused.     For,  it  is  expressly 
enacted  in  the  law  of  the  Church,  as  we  show  elsewhere, 
that  only  those  are  competent  witnesses  and  therefore  con- 
stitute  probatio  legalis,  who  have  received  the  knowledge  of 
the  facts  in  the  case,  through  their  own  senses,  and  not  from 
others.  (Our  Elements,  Vol.  II.,  n.  853). 

270.  However,  when  their  testimony  is  strengthened  not 
only  by  public  fame,  but  also  by  other  indications  of  guilt, 
they,  constitute  a  presumption  of  guilt,  more  or  less  strong, 
according   to    circumstances.      Now    canonists    generally 
teach  that  mere  presumptions,  no  matter  how  numerous, 
can  indeed,  like  all  other  indirect  or  circumstantial  evidence, 
throw  light  on  the  facts  of  the  case,  or  furnish  indications 
of  guilt,  but  never  constitute  full  proof  of  guilt.     Therefore, 

1  Reiff,  1.  c.,  n.  368.  *  Ib.,  n.  372. 


in  Inflicting  Repressive  Punishments.  113 

it  can  never  suffice  for  conviction  and  condemnation  in 
criminal  and  disciplinary  causes.  Consequently,  it  seems  to 
us  that  the  present  article,  in  allowing  witnesses  de  anditu 
to  testify,  simply  implies  that  their  testimony  is  to  be  re- 
garded as  indications,  not  proofs  of  guilt.  (See  our  Elements, 
Vol.  II.,  n.  880). 

§  3.  Hearsay   Witnesses — "  Testes  de  Fama,  de  Relato" 

271.  We  have  already  spoken  at  some  length  of  common 
fame  in  our  Elements,  Vol.  II.,  nos.  954,  sq.     Here  we  shall 
but  add  a  few  explanatory  remarks,  and  apply  what  we  say 
in  our  Elements  to  the  proceedings  which  are  conducted  in 
accordance  with  the  present  Instructio. 

272.  Q.  When  are  hearsay  witnesses  (testes  dc  famd]  admis- 
sible, also  in  our  criminal  and  disciplinary  trials,  and  what  is 
the  value  of  their  testimony,  when  admitted  ? 

A.  Before  answering,  we  must  make  a  few  prefatory  re- 
marks. Public  opinion  (fama  communis)  regarding  the  guilt 
of  a  certain  person  is  of  three  kinds  :  (a)  That  which  is  but 
an  empty  rumor  among  the  people,  does  not  proceed  from 
determinate  persons,  and  has  no  solid  foundation.  This  kind 
of  defamation  is  to  be  completely  despised.1  (b)  That  which 
proceeds  from  determinate  persons,  who,  however,  are  ani- 
mated by  malice  or  selfish  motives.  This  sort  of  public 
opinion  is  also  to  be  wholly  disregarded.2  (c).  Finally,  that 
which  originates  with  persons  who  are  worthy  of  belief,  of 
good  character  and  whose  interests  are  not  involved  in  the 
case.3  Of  this  third  or  last  kind  of  public  opinion  only  .do 
we  here  speak,  since  it  alone  has  any  weight  whatever. 
However,  in  order  that  this  kind  of  public  opinion  may 
have  any  weight,  the  following  conditions  are  required : 
i.  It  must  be  uniform,  solid,  constant,  unchanging,  not 

1  L.  de  Arrionum,  C.  de  Poenis;  cap.  24  de  ace.  -  Cap.  24  de  ace. 

3  Ib.,  Reiff,  1.  2,  t.  20,  n.  391. 


114       Mode  of  Proceeding  which  imist  be  Observed 

vague,  light  or  conflicting.  2.  It  must  be  proved  that  it  does 
in  reality  exist,  and  that  it  has  arisen  from  facts  and  circum- 
stances which  justly  led  the  people  to  believe  and  speak 
of  the  offence  or  facts.  We  say,  it  must  be  proved  that  it 
does,  etc.  How,  then,  can  the  existence  of  fama  be  proved  ? 
By  the  testimony  of  two  witnesses,  who  are  above  all  sus- 
picion or  objection.1  These  are  the  kind  of  witnesses  of 
whom  we  now  speak.  By  testes  de  fama,  therefore,  we  here 
mean  those  who  testify  to  the  existence  and  characteristics 
of  the  third  kind  of  public  opinion. 

2.73.  We  now  answer  :  There  is  question  of  admitting 
these  witnesses  either  before  the  trial  begins,  for  the  purpose 
of  authorizing  the  Ordinary  to  begin  the  trial,  or  after  the 
trial  has  begun,  in  order  to  prove  the  guilt  of  the  accused. 
In  the  first  case,  these  witnesses  are  admissible  uncondition- 
ally, provided  they  are  above  all  objection :  and  the  sworn 
testimony  of  two  such  witnesses  establishes  the  existence  of 
fama  communis,  and  consequently  authorizes  the  Ordinary 
to  commence  a  special  judicial  inquiry.  But  it  has  no  fur- 
ther weight  whatever  as  proof. 

274.  In  the  second  case,  these  witnesses  can  be  allowed  to 
testify  only  when  other  witnesses  who  are  competent  in 
law — namely,  direct  eye  and  ear-witnesses,  cannot  be  had. 
For  the  law  of  the  Church  justly  requires  that,  especially  in 
criminal  and  disciplinary  causes,  the  proofs  and  consequent- 
ly also  the  witnesses  shall  be  without  any  defect  or  flaw  ;  that, 
consequently,  defective  witnesses,  such  as  the  hearsay  wit- 
nesses in  question,  are  not  admissible,  except  when  it  is 
proved  that  perfect  and  qualified  witnesses  cannot  be  ob- 
tained. But  even  in  the  case  where  these  witnesses  are  ad- 
missible, their  testimony  has  only  the  same  force  as  the 
common  fame  itself.  Now,  common  fame  has  not,  in  crim- 
inal and  disciplinary  causes,  the  force  of  even  a  semi-full 

1  Cap.  21  de  ace.  ;  Reiff.,  1.  c.,  n.  393,  sq. 


in  Inflicting  Repressive  Punishments.  115 

proof  (probatio  semi-plena)  but  merely  of  an  indication  of 
guilt.  Hence  the  testimony  of  witnesses  de  fama,  no  mat- 
ter how  numerous,  cannot  convict  the  accused.1  In  this 
sense  only  does  the  present  Instructio  allow  them  to  be  ad- 
mitted as  witnesses,  as  is  plain  from  the  wording  of  the 
article  now  under  discussion. 

275.  However,  where  these  witnesses  cannot  be  admitted 
against  the  accused,  save  in  the  exceptional  cases  given,  they 
must   always  be  admitted  when  they  are  produced  in  favor 
of  the  accused ;  for  the  law  accepts  even  such  defective  wit- 
nesses as   competent   witnesses   to   prove  the  innocence  of 
the  accused.2 

276.  Lastly,  as  the  article  under  discussion  speaks  of  the 
citation  of  witnesses,   we  ask :    Is   it  necessary  to  cite  the 
witnesses,  in  order  that  their  testimony  may  be  legal  and 
have  the  force  of  proof  ?     The  rule  is  that  a  witness  who 
presents  himself  spontaneously,  whether  in  the  informative 
inquiry  that  precedes  the  citation  of  the  accused,  or  in  the 
trial   which    follows   the    latter's   citation,  is  suspected   of 
falsehood  and  therefore  does  not  prove  anything.     We  say 
spontaneously ;    now,    a    witness   is   said   to   present  himself 
spontaneously,  when  he  appears  either  without  having  been 
juridically   cited,   or   without   having   been    requested    to 
come  by  the  judge  or  the  party.3     Hence,  when  it  is  proba- 
ble or  certain  that  a  witness  will  appear,  if  asked,  it  is  not 
necessary  that  he  should  be  juridically  cited  :  it  is  sufficient, 
in  the  case,  if  the  judge  (or  litigant)  requests  him  by  private 
letters  to  appear  as  a  witness.     The  formula  for  such  private 
letters  is  given  by  Bouix,  de  Jud.,  Vol.  II.,  p.  521. 

277.  Where    the    witness,    however,    refuses  to  comply 
with  these  private  letters,  or  where  the  judge  or  auditor 
thinks  that  private  letters  will  not  obtain  the  desired  result, 

1  Santi,  1.  c.  2  Cf.  Schmalzg.,  1.  2,  t.  20,  n.  112. 

3  Pellegr.,  Praxis,  p.  iv.,  sect,  iv.,  n.  3. 


1 1 6     Mode  of  Proceeding  which  must  be  Observed 

the  proper  mode  of  procedure  will  be  to  issue  a  formal  ju- 
ridical citation  to  the  witness  at  the  request  of  the  party  wish- 
ing to  produce  him.  For  the  formula  of  this  citation,  see 
Bouix,  de  Judic.,  Vol.  II.,  p.  521,  522;  Pellegrino,  Praxis 
Vicar,  p.  iv.,  sect,  iv.,  n.  96.  See  our  Elements  of  Ecclesiasti- 
cal Law,  Vol.  II.,  n.  836. 

278.  A  copy  of  the  citation  or  request  should,  moreover, 
be  filed  among  the  acts,  so  that  it  may  juridically  appear 
that  the  witness  did  not  come  of  his  own  accord.1 

279.  We  have  said  above,  the  rule  is  ;  for  where  the  party 
against  whom  a  spontaneous  witness  testifies  is  present  and 
does  not  appear,  the  latter's  testimony  becomes  that  of  a 
competent  witness.2 

280.  Sometimes  witnesses,  even  though  cited,  refuse  to 
appear  for  examination,  or  if  they  appear,  they  refuse  to 
answer,  and  that  either  through  fear,  hatred,  etc.     Can  the 
ecclesiastical  judge,  also  in  the  United  States,  compel  them, 
even  by  punishments,  to  comply  with  the  citation  ?     For 
the  answer  see  our  Elements,  Vol.  II.,  n.  860,  86 1. 

281.  We  merely  add,  it  is  beyond  doubt  that  \n  civil  causes 
of  the  ecclesiastical  forum,  witnesses  can  be  compelled  to 
appear  and  to  answer.     Can  they  be  compelled  to  do  so  also 
/;/  criminal  and  disciplinary  causes  ?     There  are  three  opin- 
ions.     The  first  denies  absolutely,  on  the  ground  that  even 
though   the   truth   be   concealed,  in  a  criminal  cause,   the 
only  effect  will  be  that  the  guilty  person  will  not  be  pun- 
ished ;  and  consequently  no  special  injury  is  done  to  any 
person.     The  second  affirms,  chiefly  because  the  public  good 
of  the  faithful  requires  that  crimes  shall  not  go  unpunished. 
The  third  opinion  holds  a  middle  course,  and  teaches  that 
witnesses  can  be  compelled  to  testify  in  criminal  causes,  in 
the  following  cases  :     i.    Where  otherwise  the  truth  cannot 
be  known.     2.  Where  the  witness  maliciously  evades  giving 

1  Pellegr.,  1.  c.,  p.  iv.,  sect,  iv.,  n.  3.          2  Reiff.,  1.  c.,  t.  20,  n.  416,  417. 


in  Inflicting  Repressive  Punishments.  1 1 7 

his  testimony  ;  or  where  the  adverse  party — v.g.,  the  prose- 
cution, maliciously  hinders  the  production  of  the  witness.  3. 
Where,  in  a  criminal  or  disciplinary  cause,  the  witness  is  pro- 
duced by  tJic  accused  to  prove  his  innocence ;  for  in  this  case, 
the  witness  is  bound  to  testify,  even  though  not  asked.  4. 
When  there  is  question  of  crimes  which  are  injurious  to 
others,  and  therefore  cannot  be  concealed  without  danger 
to  the  public  ; — such  are  simony,  heresy,  etc.  5.  Finally,  in 
all  cases  where  the  truth  cannot  be  withheld  without  a 
grievous  sin.  This  third  opinion  is  sustained  by  Schmalz- 
grueber,  1.  2,  t.  21,  n.  17. 

282.  It  should   be  observed,  however,  with    Pellegrinus, 
that  while,  according  to  the  written  law  of  the  Church,  as 
laid  down  in  the  sacred  canons,  it  does  not  seem  that  wit- 
nesses can  be  compelled  to  testify  in  ecclesiastical  causes  of 
a   criminal  nature,  yet,    by   universal  custom,   the   contrary 
practice    has   been   introduced    into    all   the   ecclesiastical 
curias.     By  virtue  of  this  general  custom,  which  now  has 
the  force  of  law,  it  is  at  present  lawful  for  ecclesiastical 
curias,  also  in  the  United  States,  to   compel   witnesses   to 
appear  also  in  criminal  causes,  and  that  by  pecuniary  fines, 
and  if  need  be,  also  by  censures.  * 

283.  We  have  seen  above,  under  article  xii.,  that  when  the 
compilatio  processus  is  entrusted  to  an  auditor,  the  latter  cites 
and  examines  the  witnesses.     Here  it  may  be  asked :    Has 
he  also,  by  virtue  of  his  office,  the  power  to  compel  witnesses, 
even  by  punishments,  to  testify  ?     On  general  principles,  he 
would  seem  to  possess  this  power.     For,  a  person  who  is  ap- 
pointed   to  discharge   certain  functions  has,  by  this  very 
appointment,  all  that  power  and  authority  which  are  neces- 
sary to  enable  him  to  perform  his  duties  properly,  unless 
where  the  contrary  is  expressly  stated.     On  the  other  hand, 
the  infliction  of  censures,  or  other  punishments,  upon  refrac- 

1  Pellegr.,  1.  c.,  p.  iv.,  sect,  v.,  n.  4. 


1 1 8     Mode  of  Proceeding  which  must  be  Observed. 

tory  witnesses  is  such  a  grave  and  delicate  matter,  espec- 
ially at  the  present  day,  that  it  seems  safer  to  hold  that  the 
power  in  question  is  reserved  to  the  Bishop,  and  becomes 
vested  in  the  auditor  only  when  it  is  expressly  delegated  to 
him  by  the  Bishop. 


CHAPTER   III. 

THE    TRIAL    CONTINUED — FROM   THE   CITATION   TO   THE 
DEFENCE   OF  THE   ACCUSED. 

(FROM  ART.  xxi.  TO  ART.  xxvii. 

ART.  XXI. 
Citation  of  the  Accused. 

XXI.  "Ubi  id  omne  quod  ad  veritatem  factorum  constituendam  et  cul- 
pam  accusati  probandam  pertinet,  absolutum  fuerit,  imputatus  intimatione 
scripta,  ad  examen  vocatur." 

284.  In   the   preceding   articles  (art.   xi.-xxi.),   we   have 
chiefly  discussed  the  duties  and  functions  of  the  auditor  or 
investigating  judge  prior  to  issuing  the  citation  to  the  ac- 
cused.    We  have  seen  that  before  issuing  the  citation,  he 
should  collect  all  the  proofs  which  go  to  show  the  guilt  or 
innocence  of  the  accused,  in  order  that  it  may  appear  juridi- 
cally whether  there  is  sufficient  ground  for  issuing  the  ci- 
tation.    It  has  also  been  shown  that,  for  this  purpose,  he  can 
and  should  cite  and  examine  witnesses,  and  also  receive  and 
examine  all  other  proofs  which  are  presented  or  submitted  to 
him  by  the  diocesan  prosecutor.     We  have,  moreover,  seen 
how  he  is  to  examine  the  witnesses.     Finally,  it  has  been  re- 
marked that  this  preliminary  investigation  should  be  as  full 
and  impartial  as  possible,  since  its  object  is  not  merely  to 
find  out  the  guilt,  but  also  the  innocence  of  the  accused. 

285.  When  the  auditor  has  finished  this  preliminary  inves- 
tigation, or  processus  informations,  he  must  carefully  weigh 
the  evidence  and  see  whether  there  is  sufficient  ground  for 
citing  the  accused.     If  he  does  not  find  at  least  half  proof  of 


I2O  The  Trial  Continued — 

guilt,  all  further  proceedings  must  be  stopped.  But  if  he 
finds  there  is  complete,  or,  at  least,  half  proof  of  guilt,  he  can 
proceed  to  the  citation.  This  is  evidently  also  the  mean- 
ing of  the  present  article  of  the  Instruction,  when  it  says  : 
"  Ubi  id  omne  quod  .  .  .  ad  culpam  accusati  probandam  per- 
tinet,  collectum  fuerit,  ad  examen  vocatur.  "  The  Third 
Plenary  Council  of  Baltimore,  n.  312,  very  justly  adds: 
"  Cavendum  est  ne  vocetur  antequam  omnia  collecta  fuerint, 
quae  facti  existentiam  atque  imputati  culpam  ostendant." 

286.  In  regard  to  the  nature  of  the  citation,  its  conditions, 
mode  of  service,   necessity,  and  effects,  see  our  Elements, 
Vol.  II.,  nos.  994-1010. 

287.  Here  we  shall  briefly  call  attention  to  a  provisional 
measure  which  the  auditor  or  judge  may  sometimes  adopt, 
after  the  processus  informativus  is  completed,  and  that  either 
before  or  after  the  citation  of  the  accused.     It  has  been  seen 
that  when  it  appears,  at  the  end  of  the  informative  process, 
that  there  is  a  probatio  legalis  which  amounts  at  least  to  a 
half  proof  of  guilt,  the  accused  can  be  cited  for  trial.     In 
this  case,  that  is,  where  the  probatio  legalis   has  been  ob- 
tained, the  accused  may  sometimes   be  commanded  by  the 
auditor  or  judge  to  retire  into  a  monastery  or  other  suitable 
place,  during-  the   time  tJie   trial  goes   on.     The  auditor   may 
issue  this  command  either  before  or  after  the  citation. 

288.  We  say  sometimes ;    for   this  provisional  measure   is 
equivalent   to   ecclesiastical  imprisonment  (carceratid),  and 
therefore  always  inflicts  great  disgrace  upon  the  accused. 
Hence  it  is  considered  a  very  serious  punishment,  nay,  a  dam- 
num  irreparabile,  like  a  censure,  to  which  it  bears  a  strong 
resemblance. 1     Consequently  it  cannot  be  inflicted  by  the 
auditor  or  judge,  save  (a)  when  there  are  extant  legitimate 
proofs  of  guilt,  obtained,  not  extrajudicially,  but  judicially— 
i.e.,  during  the  }\\r\&\c.-&  processus  informativus,  as  explained  ;* 

1  Pellegr.,  part.iv.,  sect,  vi.,  n.  18.  *  Pellegr.,  1.  c.,  n.  n. 


From  the  Citation  to  the  Defence  of  the  Accused.   121 

(£)  when  the  crime  in  question  is  very  grave  and  atrocious, 
and  moreover,  causes  great  scandal,  so  that  the  accused  can- 
not continue  to  exercise  the  sacred  ministry  publicly  and  in 
the  midst  of  those  among  whom  his  offence  is  known,  without 
grave  scandal  and  injury  to  religion. 

289.  Pellegrinus  teaches  that,  owing  to  the  disgrace  en- 
tailed by  this  constructive  imprisonment,  the  ecclesiastical 
judge  who  orders  it,  without  the  above  conditions,  renders 
himself  liable  to  heavy  damages  to  the  accused. 1 

290.  This  assignment  to  a  religious  house  or  other  suit- 
able place  is  called  preventive  or  provisional  imprisonment, 
and  is  to  be  distinguished  from  afflictive  imprisonment,  which 
is  sometimes  inflicted  as  a  regular  punishment,  after  the  trial 
is  entirely   over,   and   sentence  of  condemnation  has  been 
passed.2     (See  our  Elements,  Vol.  III.) 

291.  In   connection  with  this  matter,  it  may  not  be  out  of 
place  to  refer  briefly  to  a  mode  of  procedure  which  was 
formerly  in  use,  but  is  now  abolished,  namely,  the  purgatio 
canonica.     It  has  been  seen  that,  at  the  present  day,  when,  at 
the  conclusion  of  thefrocessus  informativus,  no  legal  half  proof 
of  guilt  is  obtained,  the  accused  cannot  be  cited,  tried  or 
punished.      In  former  days,  especially  in  the  twelfth  and 
thirteenth  centuries,  a  different  practice  existed.     For  when, 
in  those  days,  it  was  found,  upon  due  investigation,  that 
there  was  public  defamation   imputing  a  certain  atrocious 
crime  to  a  certain  ecclesiastic,  and  when  it  was,  moreover, 
found  that  there  were  strong  indications  of  guilt,  but  yet 
that  the  guilt  could  not  be  fully  and  juridically  proven,  the 
procedure  called  the  purgatio  canonica  took  place.     That  is, 
the  accused,  if  the   public  fame  continued,   was  first  sus- 
pended ob  officio,  and  then  commanded  by  the  ecclesiastical 
judge  to  swear  on  the  holy  gospels  that  he  did  not  commit 
the  crime.     This  oath  had  to  be  supplemented  by  a  similar 

1  Pellegr.,  1.  c.,  n.  15,   16.  2  Stremler,  1.  c.,  p.  62. 


122  The  Trial  Continued — 

oath  of  a  certain  number  of  other  persons,  called  compurga- 
tores. 

292.  When  he  had  thus  purged  or  cleared  himself  (pnrga- 
tio  canonicd]  of  the  suspicion  of  guilt,  the  suspension  was  re- 
mitted, and  he  was  fully  reinstated.  If  he  failed  to  purge 
himself  as  above,  sentence  of  condemnation  was  pronounced, 
by  which  he  could  be  deprived  of  his  office  and  benefice  and 
consigned  to  a  monastery. x  This  procedure  is  no  longer  in 
use.* 


ART.  XXII.,  XXIII. 

Contents   of  the  Citation. 

XXII.  "  In  intimatione,    nisi  prudentia    obstet,   accusationes   contra 
reum  perlatae,  per  extensum  referuntur.  ut  ad  responsionem  se  parare 
possit." 

XXIII.  "Quod  si  ob  accusationum  qualitatem  vel  alia  de  causa  baud 
expediat,  ut  in  intimatione  exprimantur,  in  hoc  satis  erit  innuere,  ipsum 
ad  examen  vocari  ut  in  causa,  de  qua  contra  eum  fit  inquisitio,   sese 
defendat." 

293.  Both  these  articles,  showing  that,  as  a  rule,  the  ac- 
cusations  must   be   in  full  communicated   to   the   accused 
simultaneously  with  the  citation,  are  plain,  and,  moreover, 
sufficiently  explained  in  our  Elements,  Vol.  II.,   Nos.    1002, 
1003. 

294.  Here  we  merely  remark  that  when  the  auditor,  or 
investigating  judge,  sends    the    charges  to    the    accused, 
together  with  the  citation,  he  can  do  so  by  simply  enclosing 
a  copy   of  the  bill  of  charges,  made  out  by  the  diocesan 
prosecutor,  and  amended  or  altered  by  him,  if  need  be,  at 
the   end   of    the    preliminary    investigation,    prior   to    the 


1  Cap.  6,  10,  de  Purg.  Can.  (v.,  34). 

3  Reiff.,  1.  5,  t.  34,  n.  20 ;  Giraldi,  Exp.  Jur.   Pont,  ad  tit.  de  purg.  can. ;  Moli- 
tor,  Trials,  p.  237. 


From  the  Citation  to  the  Defence  of  the  Accused.   123 

citation.  We  say,  amended  or  altered ;  for  the  accuser  or 
prosecutor  may  change  his  libcllus  or  indictment  until  the 
lit  is  contestatio  has  taken  place,  as  we  show  in  our  Elements, 
Vol.  II.,  n.  991. 

ART.  XXIV. 
Contumacy  of  the  Accused,  or  his  Refusal  to  Obey  the  Citation. 

XXIV.  "  Si  ad  examen  accedere  recuset,  iterum  fit  intimatio,  atque  in 
ea  congruum  tempus  peremptorium  praefinitur  intra  quod  reus  coram 
tribunali  se  sistere  debeat,  eique  significatur,  si  non  pareat,  contumacem 
esse  judicandum ;  quam  intimationem  si  baud  probato  legitimo  impedi- 
mento  transgrediatur,  ut  contumax  de  facto  habebitur." 

295.  This  article  outlines  the  mode  of  procedure  to  be 
followed  in  case  the  accused  refuses  to  obey  the  citation. 
The  Instructio  enacts  that  a  simple  citation  shall   first  be 
issued  to  the  accused  ; *  that  if  he  refuses  to  obey  this  cita- 
tion, and  fails  to  appear  in  court,  he  shall  be  cited  a  second 
time,  and  that  peremptorily  ;  that  if  he  contemns  even  this 
second   citation,   he   shall   be  adjudged  contumacious,  un- 
less   he   can   prove   that   he   was   lawfully   hindered   from 
coming. 

296.  Accordingly,  when   the   accused   fails   to   obey  the 
second  citation,  the  diocesan  prosecutor  moves  that  he   be 
juridically   declared    contumacious.      Before    making    this 
declaration,  the  auditor  or  judge  should,  by  a  summary  in- 
vestigation,   ascertain    whether    the    disobedience   of  the 
accused  is  excusable  or  not.     For  this  purpose,  he  should 
carefully  weigh  the  excuses,  which  the  accused  himself  may 
have  sent,  or  which  may  otherwise  appear,  as  we  show  in 
our  Elements,  Vol.  II.,  N.  1023.     If  he  finds  that  there  is  no 
sufficient  excuse  for  the  disobedience,  he  formally  declares 
the  accused  contumacious.2     For  the  causes  excusing  from 

1  Art.  xxi. 
2  Arg.  Cap.  Cum  Dilecti  6,  de  dol.  et  cont.  (ii.  14);   Reiff.,  1.  2,  t.  14,  n.  122. 


124  The  Trial  Continued — 

contumacy,  see  our  Elements,  1.  c.,  n.  1013.     For  the  formula 
of  this  declaration,  see  Bouix,  de  Jud.,  Vol.  II.,  p.  559. 

297.  After  this  declaration  of  contumacy,  the  auditor  or 
judge  appoints  ex  officio  an  advocate  to  represent  and  de- 
fend the  absent  and  contumacious  accused,  and  then  a  day  is 
set  for  the  trial  to  go  on  in  the  absence  of  the  accused.     On 
the  day  appointed,  the  trial  goes  on  as  though  the  accused 
were  present  in  person.     The  diocesan  prosecutor  conducts 
the  prosecution,  and  the  advocate  appointed  ex  officio  for 
the  accused,  takes  charge  of  the  defence.1     See  our  Elements, 
Vol.  II.,  n.  1016. 

298.  It   should   be   observed   here,  as  the    Third  Plenary 
Council  of  Baltimore,  n.  313,  teaches,  and  as  we  show  in  our 
Elements,  Vol.  II.,  Nos.  1016,   1021,  that  the  contumacy  of 
the  accused  constitutes  a  strong  presumption,  but  not  a  full 
proof 'of  guilt.     Consequently,  the  guilt  of  the  accused  who 
is  contumacious  must  be  established  by  legal  proof,  just  as 
though  he  were  present  at  the  trial. 

299.  As  to  the  punishments  which  may  be  inflicted  upon 
the  accused  for  his  contumacy,  apart  from  the  question  of 
his  guilt  or  innocence  of  the  crime  for  which  he  was  cited 
for  trial,  see  our  Elements,  1.  c.,  nos.  1020,  300,  sq. 

Under  No.  1022  (Elements,  Vol.  II.)  we  say,  in  common 
with  all  canonists,  that  "  an  accused  who  is  in  contempt  can 
be  excommunicated  for  such  crime  of  contempt."2  This  must, 
however,  be  understood  in  the  light  of  the  following  enact- 
ment of  the  Council  of  Trent:3  "As  regards  judicial  causes, 
it  is  enjoined  on  all  ecclesiastical  judges,  of  whatsoever  dig- 
nity they  may  be,  that  both  during  the  proceedings  (or 
trial),  and  in  giving  judgment,  they  abstain  from  ecclesiastical 
censures  or  interdict,  as  often  as  an  execution  on  the  person 
or  property  can,  in  each  stage  of  the  process,  be  effected  by 
them  of  their  own  authority.  ...  In  like  manner,  in  criminal 

1  Prague  Instruction,  §  62,  64,  65;  Dfoste,  p.  131. 
:  Cap.  TUJC  fraternitatis  3  (ii.  6}.  3  Sess.  25,  Cap.  3  de  Ref. 


From  the  Citation  to  the  Defence  of  the  Accused.    125 

causes,  wherein  an  execution  can,  as  above,  be  effected  upon 
the  person  or  goods,  the  Judge  shall  abstain  from  censures  ; 
but  if  that  execution  cannot  easily  be  made,  it  shall  be  law- 
ful for  the  judge  to  employ  the  said  spiritual  sword  against 
delinquents ;  provided,  however,  the  character  of  the  offence 
so  require,  and  after  two  monitions  at  least." 

301.  Canonists  interpret    this  decree   to    mean  that  cen- 
sures  can   be   inflicted   only   in   the   one   case,    where   the 
accused,  after  having  been  condemned  for  a  grave  offence, 
eludes   the   execution   of   the   sentence ;  that  consequently 
they  cannot  be  imposed  for  the  contumacy   in  question.1 
Thus  Pierantonelli 2  says  it  plainly  follows  from  the  above 
decree  of  the  Council  of  Trent  (sess.  25,  c.  iii.,  de  Ref.)  that 
the  ecclesiastical  judge  must  abstain  from  inflicting  censures 
for  contumacy,  not  only  when  he  can  punish  the  contumacy 
by  temporal  punishments,  such  as  pecuniary  fines,  but  also 
when  it  is  in  his  power  to  go  on  with  the  trial  and  to  exe- 
cute his  final  sentence  of  condemnation.     In  the  same  sense 
Reiffenstuel,3   speaking   of   the    infliction    of    censures    for 
contumacy,  teaches  :    "  Quinimo  Concilium  Trid.,  sess.  25,  c. 
iii.,  de  Ref.,  saluberrime  mandat  omnibus  judicibus  ecclesi- 
asticis,  quod  ad  poenam  excommunicationis  non  procedant, 
quantocunque  executio  realis  vel  personalis    adversus  reos 
fieri  poterit." 

302.  The  second  condition  of  inflicting  censures  for  con- 
tumacy, is  that  the  ecclesiastical  judge  must  give  the  ac- 
cused who  is  contumacious,  at  least  two  warnings  before- 
hand that  he  will  inflict  censure,  unless   he   appears  and 
obeys  the  citation.     This  is  expressly  stated  by  the  Council 
of  Trent.4 

303.  Pierantonelli5  remarks,  moreover,  that  the  laws  and 
regulations  which  govern  citations,  their  execution,  and  the 
contumacy  of  the  party  cited,  apply  not  only  to  the  citation 

1  Droste,  p.  130.  -  P.  134.  3  L.  ii.,  t.  14,  n.  141. 

4  Sess.  25,  c.  iii.,  de  Ref.  5  P.  135. 


126  The  Trial  Continued — 

calling  the  accused  to  trial,  but  also  to  all  the  other  citations 
or  notifications  which  are  made  during  the  progress  of  the 
trial,  so  that  a  stubborn  disobedience  to  these  authorizes  the 
judge,  at  any  stage  of  the  trial,  to  open  contumacy  proceed- 
ings, that  is,  to  go  on  with  the  trial  in  the  absence  of  the 
contumacious  party,  etc.,  in  the  manner  explained. 

304.  Q.  Can  the  two  citations  prescribed  by  the  Instruction  be 
sometimes  contracted  into  one  ? 

A.  The  affirmative  would  appear  to  follow,  from  the  fact 
that  the  general  law  of  the  Church,  though  it  prescribes 
three  simple  citations,1  yet  allows  the  ecclesiastical  judge  to 
contract  them  into  one  peremptory,  where  the  circumstances 
of  the  case  require  it.  See  our  Elements,  Vol.  II.,  n.  997. 
Notwithstanding  this,  the  negative  seems  the  true  opinion. 
For  it  appears  to  us  that  the  argument  taken  from  the 
general  law  of  the  Church  does  not  hold.  In  fact,  the  com- 
mon law  of  the  Church,  while  prescribing  three  simple 
citations,  also  expressly  authorises  the  ecclesiastical  judge  to 
contract  them  into  one  peremptory,  where  there  is  sufficient 
reason  for  so  doing,  whereas  the  Instructio,  while  expressly 
requiring  two  citations — one  simple,  the  second  peremptory 
— does  not  say  a  single  word  about  contracting  them  into  one.2 

305.  For  fuller  information  concerning  contumacy,  its 
effects,  mode  of  procedure,  etc.,  also  in  the  United  States, 
see  our  Elements,  Vol.  II.,  n.  1010-1026. 

306.  For  the  mode  of  procedure  in  case  of  contumacy,  to 
be  followed  by  commissions  of  investigations,  where  they 
shall  exist.     See  our  Elements,  1.  c.,  n.  1017,  1024,  1025. 

1  Can.  de  illicita,  6,  $  quicunque,  causa  24,  q.  3. 
8  Cf.  Cone.  PI.  Bait,  iii.,  n.  313. 


From  the  Citation  to  the  Defence  of  the  Accused.    1 27 

ART.  XXV. 

The  Hearing  Given  the  Accused  as  soon  as  he  Appears  on  due 
Citation — Exceptions  Proposed  by  him. 

XXV.  "Verum  si  ad  examen  accedat,  audiatur  ;  et  ubi  inductiones 
alicujus  valoris  exhibeat,  eae,  quantum  fieri  potest,  accurate  discutiantur." 

307.  Having,  in  the  preceding  article,  outlined  the  mode 
of  procedure  in  case  the  accused  fails  to  come  into  court, 
the  Instruction  now  describes  what  is  to  be  done  when  he 
obeys  the  citation  and  appears  in  court.     Accordingly,  as 
soon  as  the  accused  appears  before  the  auditor  or  ecclesi- 
astical judge,  conducting  the  compilatio  proccssus,  the  latter 
should  at  once,  and  before  proceeding  to  the  lifts  contcstatio, 
admit  him  to  a  hearing,  in  order  to  give  him  a  chance  to 
establish  his  innocence  forthwith,  and  without  any  further 
proceedings,  and  also  to  make  legitimate  exceptions. 1     This 
hearing  is  called  the  constitutum,  from  the  word  constitutus, 
with  which  the  notary  begins  the  minutes  of  the  proceed- 
ings. -     Our  Elements,  Vol.  II.,  n.  1026,  sq. 

308.  How  is  this    first  hearing  conducted?     Either  the 
indictment  or  charges  were  sent  to  the  accused,  together 
with  the  citation,  as  directed  in  article  xxii.,  or  not.     If  not, 
the  auditor    directs  the    diocesan  prosecutor  to  read  the 
charges  to  the  accused  and  to  give  him  a  copy  of   them. 
Then,  if  the  accused  desires  it,  a  delay  must  be  granted  him 
to  enable  him  to  prepare  statements  and  exceptions  which 
he  may  wish  to  make  in  his  first  hearing.3     At  the  expira- 

1  Todeschi,  §  12,  13,  p.  504. 

-  The  formula:  in  which  the  notary  generally  begins  these  minutes  is  :  "  Consti- 
tutus personaliter  in  curia  coram  Rmo  Vicario  Generali,  etc.,  meque  actuario, 
assistente  Rmo  Promotore  fiscal!  curice  episcopalis,  D.  N.  fuit  per  eundem  Vicarium 
gen.  interrogatus,  etc.'1  (Acta  S.  Sedis,  vol.  xv.,p.  391). 

3  This  seems  to  follow  clearly  from  art.  xxviii.  of  the  Instrudio.  Consequently 
the  teaching  of  Pellegrino  (p.  ii.,  sect,  i.,  subs,  v.,  n.  20)  that  this  deliberative 
delay  is  granted  only  in  civil,  but  not  in  criminal  causes  (Ib.,  p.  iv.,  sect,  ix.,  n.  44) 
does  not  appear  applicable  in  our  procedure. 


128  The  Trial  Continued — 

tion  of  this  term  or  delay,  the  hearing  takes  place  in  the 
manner  which  we  shall  presently  describe. 

309.  If  the  charges  were  sent  to  the  accused  simultane- 
ously with  the  citation,  the  auditor,  though  not  obliged,  will 
yet  laudably  direct  the  prosecutor  to  read  the  indictment 
to  the  accused  ;    then  he  will  ask  the  latter  to  make  any 
statement  or  answer  he  may  wish.     Of  course  the  auditor 
is  at  liberty,  not  only  now,  but  at  any  stage  of  the  trial,  to 
ask  him  proper  questions  for  the  purpose  of  bringing  out 
more  fully  and  clearly  the  facts  in  the  case.     The  accused 
may  or    may    not    make  any    statement  or  answer,  as  he 
pleases.     Nor  is  he  bound  to  confess  his  guilt,  even  though 
the  auditor  interrogates  him  lawfully,  at  least  when  he  has 
reason  to  believe  that  a  grave  punishment  will  be  inflicted 
upon  him,  if  he  confesses. 

310.  If,  however,  he  desires  to  make  any  observations,  he 
should  be  heard  patiently,  and  allowed  freely  and  fully  to 
give  his  own  version  of  the  facts  in  the  case,  without  being 
interrupted  in  his  narrative.     His  entire  statement  and  all 
his    answers  must  be   accurately    and    truthfully    written 
down  by  the  notary.     When  the  first  hearing  is  over,  these 
minutes  are  read  to  the  accused,  and  may  be  signed  by  him 
after  they  have  been  corrected,  if  need  be,  according  to-  his 
suggestions.     They  are  also  signed  by  the  auditor  and  the 
notary.     Rota,  p.  470,  n.  709,  advises  the  accused  to  speak 
but   sparingly,   according    to    the    poet :     "  Nulli   tacuisse 
nocet,  nocet  esse  locutum." 

311.  The  Instructio  justly  ordains  that  if  the  accused,  in 
the    first  hearing,    makes    statements    which    are  of    som« 
weight,    they    should    be  fully  discussed   and    considered. 
For  it  may  happen  that  already,  in  this  first  hearing,  and  be- 
fore the  plea  is  entered,  the  innocence  or  guilt  of  the  accused 
will  be  established  and  thus  all  necessity  for  further  pro- 
ceedings ended.     Thus  the  accused  may  at  once,  by  letters 
or  documents,  prove  an  alibi ;  or  he  may  also  show  that  al- 


From  the  Citation  to  the  Defence  of  the  Accused.    129 

though  he  committed  the  offence  materially,  he  did  not 
formally  ;  in  other  words,  that  he  acted  from  ignorance,  not 
from  malice,  etc.  Or  again,  inversely,  he  may  make  dam- 
aging statements,  criminating  himself. 

312.  The  auditor,  as  we  have  said,  is  at  liberty  to  ask  him 
questions,  for  the  purpose  of  clearing  up  the  alleged  facts 
in  the  case,  and  that  both  in  this  hearing,  and  at  any  sub- 
sequent stage  of  the  proceedings.     Here,  then,  it  may  be 
asked :     Is  the  accused,  when  asked  by  the  auditor,  bound 
to  confess  his  guilt?      For  the  answer,  see  our  Elements, 
Vol.  II.,  n.  mo,  sq.     Here  we  shall  merely  remark  that,  in 
former  days,  great  stress   was  laid  upon  the  preliminary 
examination  or  hearing  of  the  accused  which  took  place 
prior  to  the  litis  contest  atio. 1     The  accused  was  obliged  to 
swear,  at  the  beginning  of  the  hearing,  that  he  would  tell 
the  truth,  upon  being  lawfully  interrogated  by  the  judge. 
Hence,  also,  as  we  show  in  our  Elements,  1.  c.,  n.  1112,  sq., 
it  was  the  more  general  opinion  of  canonists  that  the  ac- 
cused was  bound  to  confess  his  guilt,  in  answer  to  legiti- 
mate questions  put  by  the  judge. 

313.  At  present,  however,  it  may  be  said  that  the  oppo- 
site opinion,  which  holds  that  the  accused  is  not  bound  to 
tell  the  truth  and  confess  his  guilt  in  answer  to  lawful  ques- 
tions of    the  judge,  is  perfectly  true  and   safe. 2     This  is 
inferable  from  the  fact  that  although,  at  present,  the  auditor, 
or  ecclesiastical  judge,  can  and  should  exhort  the  accused  to 
tell  the  truth,  he  is  strictly  forbidden  to  oblige  or  even  allow 
him  to  take  the  oath  that  he  will  tell  the  truth  (juramentum 
rcritatis  dicendce),  as  we  show  in  our  Elements,  Vol.  II.,  n. 
1077. 3     In  fact,  all  modern  legislation,  ecclesiastical  as  well 
as  secular,  is  based  on  the  principle  that  the  prosecutor  must 

1  Pellegr.,  part.iv.,  sect,  ix.,  n.  I.  -  Rota,  p.  466,  n.  704. 

3  The  object  is  to  prevent  the  accused  from  perjuring  himself.  Consequently, 
though  he  cannot  be  allowed  to  take  the  oath  when  testifying  or  answering  in  his 
own  behalf,  he  can  be  sworn  when  he  acts  as  witness  for  or  against  other  persons. 


130  The  Trial  Continued — 

prove  the  guilt,  and  that  consequently  the  accused  is  not 
bound  to  confess  his  guilt,  and  thus  become  himself  the  in- 
strument of  his  own  conviction.  Accordingly,  the  Church 
has  at  present  abolished  not  only  the  oath,  as  just  stated, 
but  also  the  torture,  both  of  which  were  used  formerly,  in 
order  to  compel  the  accused  to  answer. 

314.  Besides  being  allowed,  in  this  first  hearing,  to  give 
his  own  version  of  the  accusations  made  against  him,  he 
must  also  be  heard  in  regard  to  any  exceptions  he  may 
wish  to  propose.     For,  as  we  say  in  our  Elements,  Vol.  II., 
n.   1026,    "  after  the  citation  has  been  issued,  and  the  ac- 
cused comes  into  court,  he  may,  without  joining  issue,  and 
before  entering  upon  the  cause,  or  into  the  merits  of  the 
charges,  make  various  exceptions  or  objections,  which  either 
throw  the  case  altogether  out  of  court,  or  at  least  delay  it." 
These  exceptions,  if  dilatory,  should  be  fully  and  accurately 
discussed  before  the  lit  is  contest  atio  takes  place.     We  say,  if 
dilatory  ;  for  peremptory  exceptions  may,  nay,  should,  as  a 
rule,  be  made  also  after  the  litis  contestatio,  as  we  show  in 
our  Elements,  Vol.  II.,  n.  1033. 

315.  Here  it  should  be  observed    that  the  dilatory  ex- 
ceptions   against    the  auditor  or  judge  should  be  proposed 
before  any  other  dilatory  exception  ;  otherwise  the  party 
is  presumed  to  have  accepted  the  judge  -or  auditor.     See 
our  Elements,  Vol.  II.,  n.  1052.     The  accused  should,  there- 
fore, before  all  else,  make  the  exception  against  the  judge, 
if  he  sees  fit.     For   the  various  kinds  of    exceptions,  the 
mode  of  discussing,  proving  and  deciding  them,  see  our 
Elements,  1.  c.,  n.  1026-1055. 


From  the  Citation  to  the  Defence  of  the  Accused,   131 

ART.  XXVI. 
The  Plea  or  Issue  and  the  Production  of  the  Proofs  of  Guilt. 

XXVI.  "  Deinde  accedendum  est  ad  contestationem  delicti  et  argumen- 
torum  quae  prostant,  ut  inquisitus  et  culpabilis  habeatur  et  in  poenas 
canonicas  incurisse  cense  at  ur." 

§  I.   The  "  Contest  at  io  Delicti." 

316.  When  the  first  or  preliminary  hearing  is  over,  that 
is,  after  the  statements  made   by  the   accused  have  been 
heard,  and  his  exceptions  fully  discussed,  and  either  wholly 
or  partially  admitted  or  rejected,  or  decision  on  them  re- 
served, in  order  to  be  given  together  with  the  final  sentence, 
the  entering  of  the  plea,  or  the  litis  contcstatio,  takes  place, 1 
as  is   stated  in  the  article  under  discussion.     The  joining  of 
issue  or  the  contestatio  delicti  or  litis  consists  in  the  affirma- 
tion of  the  crime  and  all  its  specifications  by  the  diocesan 
prosecutor,  and  the  denial  of  them  by  the  accused  made  in 
court,  after  the  first  hearing.     See  our  Elements,  Vol.  II.,  n. 
1065. 

317.  The  manner  in  which  it  takes  place  is  this  :    The  audi- 
tor or  judge  first  assigns  a  term  to  the  diocesan  prosecutor  to 
formulate  or  frame  the  various  specifications  or  counts  (cap- 
ituld]  of  the  charges.2     Next  the  accused  is  cited  to  hear 
and  to  reply  to  them  on  a  fixed  day.3     On  the  day  appointed 
they  are  read  to  the  accused  in  court  by  the  prosecutor,  and 
the  defendant  is  asked  by  the  auditor,  in  regard  to  each 
specification,  whether  he  admits  or  denies  it.     His  answer 
is  carefully  noted  in  the  minutes  or  acts  of  the  case.4 

318.  We   say,  "the  auditor   first  assigns  a  term  to  the 
prosecutor  "  ;    this  is  to  be  understood  with  the  proviso,  if 

1  Pellegr.,  Praxis  Vicar.,  p.  68,  Venetiis,  1706. 

2  This  term  or  delay  is  called  terminus  ad  articulandum  or  capitulandum. 

3  This  term  is  styled  terminus  ad  dicendum  contra  capitula. 

4  Rota,  1.  c.,  p.  471 ;  Pellegr.,  1.  c.,  p.  iv.,  sect,  ix.,  n.  57;  Ib.,  sect  x.,  n.  86. 


132  The  Trial  Continued — 

the  prosecutor  desires  it.  For  the  first  hearing  may  not 
have  brought  out  any  new  facts,  and,  consequently,  he  may 
not  find  it  necessary  to  add  to,  change,  or  drop  any  of  the 
charges  and  specifications  which  were  sent  to  the  accused 
simultaneously  with  the  citation,  or  read  to  him  on  first  ap- 
pearing in  court.  In  this  case  he  would  be  ready  to  proceed 
forthwith  to  the  contestation,  that  is,  to  present  his  specifi- 
cations, and,  therefore,  would  not  be  in  need  of  any  delay. 
In  like  manner,  the  accused,  if  he  has  been  informed  of  all 
the  charges  and  specifications,  either  when  the  citation  was 
sent,  or  as  soon  as  he  appeared  in  court,  and  if  no  changes 
are  made  in  these  by  the  prosecutor  after  the  first  hearing, 
may  be  ready  for  the  litis  contcstatio  as  soon  as  the  first 
hearing  is  over,  without  asking  for  or  being  granted  a  new 
delay. 

319.  Where,  however,  the  prosecutor  finds  that  the  re- 
sults of  the  first  or  preliminary  hearing  make  it  necessary 
for  him  to  modify  his  charges  and  specifications, — and  he 
can,  as  we  have  seen,  alter  them  until  after  the  litis  contcsta- 
tio— he  can,  if  he  wishes,  obtain  a  delay  to  enable  him  to 
frame  the  specifications  which  he  wishes  to  present  for  the 
litis  contestatio,  in  accordance  with  the  results  of  the  first 
hearing.     In  this  case,  the  changes  made  by  the  prosecutor 
must  be  communicated  to  the  accused  and  a  suitable  delay 
allowed   him  to  prepare  his  categorical  replies.     Observe 
that  the  above  delays  are  substantial,  and,  consequently, 
must  be  granted  to  the  parties,  if  they  ask  for  them,  on  pain 
of   nullity   of  the  proceedings,  and  that  also  in   criminal 
causes,  which  are  tried  in  a  summary  manner,  as  laid  down 
in  the  Instruction? 

320.  Here  it  will  be  seen  that  we  interlink  the  litis  con- 
testatio  with  the  capitnla.     Strictly  speaking,   however,  the 
two  are  distinct  and  separate.     For  the  litis  contcstatio  con- 

1  Pellegr.,  p.  iv.,  sect,  ix.,  n.  56;  Rota,  p.  476. 


Front  the  Citation  to  the  Defence  of  the  Accused.    133 

sists  in  the  general  plea,  that  is,  in  the  general  denial  of  the 
charges  by  the  accused,  whereas  the  capitula  and  the  answer 
thereto  consist  in  the  specific  plea,  or  in  the  specific  denial  by 
the  accused  or  defendant  of  the  specific  deeds  or  details  of 
the  general  charge  or  complaint.  Consequently,  in  civil 
causes  of  the  ecclesiastical  forum,  the  litis  contestatio,  or 
general  plea,  is  always  distinct  from,  and,  as  a  rule,  precedes 
the  positiones?  In  other  words,  the  defendant  first  denies 
the  complaint  in  general,  or  in  toto,  and  thus  contests  the 
case.  Then  the  plaintiff  presents  his  specifications  (posi- 
tiones),  and  the  defendant  gives  his  specific  answer  to  each.2 

321.  But   in  criminal  causes,  also  as  tried  in  accordance 
with  our  Instruction,  the  two — the  general  (litis  contestatio) 
and  the  specific  plea  (capitula) — are  interwoven  in  such  a 
manner  as  to  constitute  but  one  and  the  same   act.      Of 
course,   before   the  accused  is  asked  to    give  his   specific 
answer  to  the  specifications,  he  should  be  asked  and  allowed 
to  put  in  his  general  answer  or  denial.     And  this  general 
denial  forms,  properly  speaking,  the  litis  contestatio,  also  un- 
der the  Instruction  Cum  Magnopere.      The  specific  answers 
to  the  various  counts,  though  pertaining  to  the  "  litis  con- 
testatio," are  rather  its  complement  than  its  constituent  part, 
and,  therefore,  pertain  rather  to   its   completeness   than   its 
essence. 

322.  These     specifications    (positiones,    capitula,    articuli} 
should  be  framed  by  the  litigants  themselves  or  their  advo- 
cates, and  not  by  the  auditor  or  ecclesiastical  judge.3      The 
reason  is  that  they  are  considered  as  prooj ~s  ;    for,  if  not  de- 
nied by  the  accused,  they  are  regarded  as  admitted  or  con- 
fessed by  him,  and,  therefore,  have  the  force  of  full  proof 
against  him.     Now  the  proofs  for  or'against  a  case  must  be 

1  The  reason  is  that  the  capitula  are  regarded  as  proofs.     Now  proofs  should  not, 
as  a  rule,  be  produced  until  after  the  litis  contestatio. 

'2  Cap.  i,  ii.,  de  Confessis  in  6°;  Reiff.,  1.  2.,  t.   18,  n.   186,  231. 
3  Ib.,  1.  c.,  n.  219. 


134  The  Trial  Continued — 

presented  by  the  litigants  themselves,  not  by  the  judge, 
whose  duty  it  is,  not  to  prove,  but  to  judge  the  case.  Hence, 
in  criminal  and  disciplinary  causes,  as  conducted  also  under 
the  Instruction  Cum  Magnopere,  the  specifications  of  the 
charge  are  made  out  by  the  diocesan  prosecutor  {procurator 
fiscalis).  The  accused  or  his  advocate  has  the  right  to  sub- 
mit defensive  specifications. 

323.  Nevertheless,   these   counts   must   be    submitted   in 
writing  to  the  auditor  or  judge,  whose  right  and  duty  it  is 
to  reject  or  admit  them,  not  arbitrarily,  but  in  accordance 
with  the  prescriptions  of  the  sacred  canons.1     Once  they 
have  been  presented  to  the  auditor  or  judge,  and  filed  by 
him  among  the  acts,  they  can  no  longer  be  changed.2 

324.  When   the  specifications  are  properly   framed   and 
presented    by    the    diocesan    prosecutor,    the    accused    is 
obliged  to  give  a  specific  answer  to  each,  provided  he  is 
commanded  by  the  auditor  or  judge  to  answer  ;    and  if  he 
refuses  to  answer  without  alleging  a  reasonable  excuse,  he 
is  looked  upon  as  having  admitted  the  specifications  which 
he  declines  to  answer.     This,  however,  needs  explanation. 

325.  We   say,  luhcn  the  specifications  are  properly  framed. 
In  what  manner,  then,  must  they  be  drawn  up,  in  order  that 
the  accused  may  be  bound  to  answer  them  ?     i.  They  must 
be  to  the  point — i.e.,  they  must  bear  on  the  crime  charged  ; 
otherwise  the  accused  need  not  answer.     2.  They  must  be 
clear,  not  vague  nor  obscure.     If  they  are  somewhat  equivo- 
cal, the  accused  has  a  right  to  ask  for  an  explanation  before 
he  answers.     3.  Each  specification  should  contain  but  one 
item,  not  two  or  three.     4.  They  should  state  facts,  but  not 
propound  questions  of,  law.     5.  They  should  be  made  as- 
sertively, not  interrogatively.     6.  Finally,  they  should  not  be 
captious — i.e.,  framed  for  the  purpose  of  entrapping  the  ac- 


1  Reiff.,  1.  c.,  n.  222,  sq.  2  Ib. 

3  Cap.  2  de  Conf.  in  6°  ;  Reiff.,  1.  c.,  n.   197. 


From  tkc  Citation  to  the  Defence  of  the  Acc:iscd.    135 

cused,   and,  therefore,  worded  in  such  a  manner,  that  no 
matter  what  way  he  answers,  he  will  criminate  himself.1 

326.  This   latter    requisite  was  brought  out    in    the  oft- 
quoted  case  of  the  Priest  David  A.,  who  appealed  to  the  S. 
C.  C.  from  the  sentence  of  the  curia  of  Milan.     The  Roman 
Advocate,  who  pleaded  before  the  Sacred  Congregation  in 
behalf  of  the  appellant  David,  showed  that  the  specifications 
and  questions  to  which  David  was  commanded  to  make  the 
categorical  reply  of  yes  or  no  (credo,  or  non  credo)  were  cap- 
tious and  framed  in  such  a  manner  that  no  matter  how  he 
answered,  he  would  hurt  his  cause.      Now,  continued  the 
Roman    Advocate,    such    specifications   and*  questions  are 
vehemently  reprobated  by  the  law  of  the  Church,  and  if  put 
to  the  accused,  render  the  proceedings  null  and  void?     The 
Sacred  Congregation,  in  April  18, 1885,  reversed  the  sentence 
of  the  curia  of  Milan,  and  decided  in  favor  of  the  appellant 
David.      This  decision  seems  thus  to   confirm    the   above 
argument. 

327.  We  say  also,  provided  he  is  commanded,  etc. ;  for,  unless 
the  accused  is  commanded  by  the  auditor  or  judge  in  person 
to  answer,  he  can  refuse  to  do  so.3     Finally,  we  say,  if  he 
refuses  to  answer,  he  is  looked  upon  as  having  admitted,  etc. ; 
this   is  true  only  when  the  accused  has  taken   the  oath  to 
tell  the  truth,  before  he  answers  the  specifications.4     Conse- 
quently it  does  not  apply  to  our  trial.      For,  according  to 
the  present  law,  the  accused  is  not  allowed  to  take  the  oath. 
Hence,  he  is  not  to  be  regarded  as  having  admitted  his 
guilt,  if  he  refuses  to  reply  to  the  specifications,  even  though 
the  auditor  or  judge  commands  him  to  answer. 

328.  The  positiones  in    civil  causes  of  the   ecclesiastical 
forum  are  worded  thus :  Ponet  et  probare  intendit  N.  quod 
die — mensis — anni — consignavit    in    manus    A.    adversarii 

1  Reiff.,  1.  c.,  n.  206;  Leur.  For.  Eccl.,  1.  2,  tit.  20,  q.  644. 
"  Acta  S.  Sedis,  vol.  xviii.,  p.  65.     3  Cap.  2  de  Conf.  in  6C ;  Reiff.,  L  c.,  n.  199. 
4  Cap.  2  de  Conf.  in  6°  ;   Reiff..  1.  c.,  n.  200. 


130  The  Trial  Continued — 

libellas    50,  etc.1       The    capitula    in    criminal    causes    are 
worded  thus :  "  Inquirendum  est  quod  N.  fecit  hoc  vel  hoc." : 

329.  Q.  Is  the  contestatio  delicti,  as  prescribed  in  the  present 
article  of  the  Instruction,   absolutely   necessary,  in  such  a 
manner  that  its  omission  will  cause  the  proceedings  to  be 
null  and  void  ? 

A.  We  premise :  There  are  two  kinds  of  litis  contestatio: 
one  formal  or  solemn  ;  the  other  simple  and  informal.  The 
formal  is  that  which  is  made  in  certain  set  words  or  phrases, 
contained  in  the  formula  of  the  respective  curia.  The  in- 
formal is  that  which  is  made  in  a  simple  manner  and  without 
any  set  form  of  words  or  phrases.3  It  matters  not  how  it  is 
worded.  All  that  is  required  is  that  the  prosecutor  shall 
clearly  and  fully  set  forth  and  affirm  the  offence  and  all  its 
details  and  specifications.4  We  now  answer:  It  appears 
certain  that  the  informal  litis  contestatio  is  sufficient,  and  also, 
at  the  same  time,  absolutely  necessary,  on  pain  of  nullity  of 
the  proceedings.  That  it  is  sufficient,  follows  from  the  fact 
that  the  trial,  as  outlined  by  the  Instruction,  is  conducted  in 
a  summary  and  informal  manner.5  That  it  is  absolutely 
necessary  is  asserted  by  Rota  (p.  471),  and  is  in  accordance 
with  the  teaching  of  all  canonists,  as  we  show  in  our  Elements, 
Vol.  II.,  n.  1066,  1069.  In  fact,  the  litis  contestatio  is  the 
basis,  foundation,  and  corner-stone  of  the  whole  trial.  Con- 
sequently, when  it  is  wanting,  no  judicial  superstructure  can 
be  raised.6 

330.  From  what  has  been  said,  it  will  also  be  seen  that  the 
object  of  the  "  litis   contestatio "  is  twofold :    The  first  and 
chief  is  to  fix  clearly  and  unalterably  the  points  at  issue  or 
the  charges  preferred  and  thus  have  a  specific  and  unchange- 
able basis  for  the  trial.     We  say,  unalterably  ;  for,  as  we  have 
seen,  the  prosecutor  cannot  alter  the   charge  after  the  litis 

1  Pierantonelli,  1.  c.,  p.  141.  *  Pellegr.,  part,  iv.,  sect.  \.,  n.  84. 

3  Todeschi,  1.  c.,  507,  §  15  ;  Pellegr.,  1.  c.,  p.  ii.,  sect,  ii.,  subs.  21,  n.  2. 
4  Rota,  p.  471.    6  Art.  x.;  cf.  Schmalzg.,  1.  2,  t.  5>  n.  3.     b  Schmalzg.,  I.e.,  n.  4. 


From  the  Citation  to  the  Defence  of  the  Accused.    137 

contestatio.  The  second  object  is  to  shorten  the  trial.  For,  as 
\ve  say  in  our  Elements,  Vol.  II.,  n.  1072,  "  if  the  prosecuting 
official,  for  instance,  proposes  ten  specifications,  and  the  de- 
fendant admits  six,  it  will  be  necessary  only  to  prove  the 
four  remaining."  For  fuller  information  regarding  the  litis 
contestatio  and  also  the  capitnla  or  specifications  of  the  charges, 
see  our  Elements,  Vol.  II.,  1.  c.,Nos.  1064,  1074. 

;j  2.   Manner  in  winch  the  Prosecutor  Produces  the  Proofs  of 
Guilt.— Probatio  Delicti. — Proccssus  Publicatio. 

331.  After  the  litis  contestatio  or  plea,  it  becomes  the  duty 
of  the  diocesan  prosecutor  to  prove  those  charges  and  speci- 
fications which  have  been  denied  by  the  accused  in  the  litis 
contestatio.  Those  which  are  admitted  by  him  need  evidently 
not  be  proved.  The  prosecutor,  then,  at  this  stage  of 
the  proceedings,1  produces  before  the  auditor,  and  in  the 
presence  of  the  accused,  all  the  witnesses,  documents  and 
other  evidence  upon  which  he  bases  the  guilt  of  the  ac- 
cused. For  this  purpose,  he  now  submits  as  evidence  or 
proof  the  entire  record  or  minutes  and  acts  of  the  proceed- 
ings which  have  taken  place  prior  to  the  citation  of  the  ac- 
cused— namely,  the  testimony  of  the  witnesses  then  examined 
pro  infonnatione  curia ;  the  documents  then  submitted  ;  the 
records  or  minutes  of  the  proceedings— all  of  which  is  read 
to  the  accused  and  a  copy  given  him,  provided,  however,  he 
has  previously  declared  that  he  regards  the  witnesses  ex- 
amined in  the  informative  process  as  lawfully  examined. 
Where  these  records  are  very  voluminous  and  where,  conse- 
quently, it  would  consume  too  much  time  to  read  them  all  to 
the  accused,  it  is  sufficient  to  give  him  a  copy  of  them,  or  to 

;  If  he  is  not  ready,  as  yet,  he  can  obtain  a  suitable  delay  to  enable  him  to  get 
ready.  This  delay  is  called  terminus  ad  producendum  omnia,  because  within  this 
term  the  prosecutor  can  and  should,  at  least  as  far  as  possible,  produce  all  his  wit- 
nesses and  other  evidence  or  proofs,  that  is,  not  only  the  proofs  collected  during  the 
informative  proceedings,  but  also  others  that  he  may  have  obtained  afterwards. 


138  The  Trial  Continued — 

allow  him  to  inspect  and,  if  he  desires,  copy  them.1  This  is 
called  the  publicatio  processus  offensive  or  informativi,  as  we 
show  in  our  Elements,  Vol.  II.,  n.  855,  1120,  sq.  It  is  a  sub- 
stantial  part  of  all  criminal  trials,2  and  is  therefore  also  pre- 
scribed, and  that  on  pain  of  nullity,  by  the  Instruction,  when 
it  say.s :  Deinde  accedendum  est  ad  contestationem  delicti,  et 
argumentorum,  quce  prostant"  3 

332.  We  have  just  said,  provided  he  has  previously  declared, 
etc. ;  for,  before  the  informative  proceedings  and  the  proofs 
collected  in  these  proceedings,  are  read  or  communicated  to 
the   accused,   in   the   manner   stated,    the    latter   is   asked 
whether   he   considers   the    witnesses    who    were   then  ex- 
amined, in  the  informative  process,  as  lawfully   cited  and 
properly  examined  or  not.     If  he  replies  in  the  affirmative, 
their  testimony  becomes  legalized  by  this  declaration  ;  that 
is,  by  fiction  of  law,  it  is  regarded  as  having  been  taken  after 
the    "  litis  contestatio,"  and  consequently  jam   constitute  ct 
citato   reo,   and   having   therefore  the  same   legal   force   as 
proof  of  guilt,  as  though  the  witnesses  had  been  in  reality 
examined  after  the  citation  of  the  accused,   and  after  the 
litis  contestatio.     In  other  words,  the  above  declaration  of 
the  accused  gives  the  testimony  the  force  of  probatio  legalis. 

333.  Hence,  as  soon  as  he  has  made  this  declaration,  the 
entire  testimony  of  the  witnesses  is  forthwith  published   to 
him,  in  the  manner  stated.     Thus  the   Third  Plenary  Council 
of  Baltimore,  n.  314,  explaining  the  present  article  (xxvi.)  of 
the  Instructio^  says :     "  Itaque  coram  accusato  legendae  sunt 
testium  depositiones,  et  conclusiones  ex  illis  deductee." 

334.  In  the  second,  namely,  where  the  accused  refuses  to 
make  this  declaration   and  thus  to  legalize   the  testimony 
of  the  witnesses,  as  taken   during  the  informative  process, 
the  witnesses  must  all  be  cited  and  examined  over  again 
(repetitio  testium},  at  this  stage  of  the  trial,  just  as  though 

1  Rota,  p.  472.         -  Pellegr.,  part,  iv.,  sect,  x.,  n.  18.         3  Rota,  1.  c.,  p.  472. 


From  the  Citation  to  the  Defence  of  the  Accused,    139 

they  had  not  been  examined  as  yet,  and  only  when  they 
have  been  examined  over  again  after  the  litis  contestatio, 
does  the  auditor  or  judge  order  the  above  publication  to 
take  place. 

335.  Here  the  question  arises :   are  the  names  of  the  wit- 
nesses also  to  be  communicated  to  the  accused,  together 
with1  their  testimony  at  the  fltbh'catw  flrocessiis  informativi  or 
litis  contcstatio  in  question  ?     According  to  the  general  law 
of  the  Church,  as  generally  interpreted  by  canonists,  and 
prescinding  at  present  from  the  Instrnctio,  it  is  necessary  to 
distinguish  between  two  cases  :   i.  Where  the  accused  legal- 
izes the  informative  process,  by  his  declaration,  as  explained  ; 
2.  Where  he  declines  to  make  this  declaration.     In  the  first 
case,  the  names  and  surnames,  as  well  as  the  testimony  of  the 
witnesses,  must  be  forthwith  communicated  to  the  accused. 
In  the  second  case,  the  names  as  well  as  the  testimony  of  the 
witnesses   need    not  be    published   to   him,  until   after  the 
witnesses   have    been   examined    over  again,   as   explained 
already. 

336.  Bouix 1  gives  the  above  teaching  thus :  "  Peracto  rei 
examine  .  .  .    Judex  decernit  publicari,  et  publicat  process- 
urn  (offensivum)  hue  usque   peractum.     Dicitur  autem    pro- 
cessus   offcnsivus   tota   ea   pars    processus    criminalis,    quae 
prjecedit  decretum  judicis,  quo  reo  copiam  actorum  conce- 
dit,   ut  sese  defendere  possit.     Et  vocatur   offensivus,  quia 
hucusque  omnia  peraguntur  contra  reum,  ad  detegendum 
nempe  ipsius  delictum  ;    et  nondum  ad  sese  defendendum 
admissus  est.     Fit  autem  pnblicatio,  legendo  totam  seriem 
processus   hucusque   habiti. .  .     Quamvis  Judex,    publicato 
processu  offensive,  teneatur  reo  petenti  concedere  ejusdem 
processus  copiam,  non  tenetur  ad  manifestanda  ipsi  testium 
nomina  antequam  testes  repetantur  ;    nisi  reus  velit  process- 
urn    hue    usque    habitum    Icgitimarc,  id  est,   nisi  deelaret  se 

1  De  Jud.,  vol.  ii.,   pp.  215,   216. 


140  The  Trial  Continued — 

habere  testes  in  informative  processu   receptos,  pro  rite  ct 
recte  citatis  et  examinatis" 

337.  This  is  apparent  also  from  the  formula  of  this  publi- 
cation, as  given  by  canonists  in  general,  and  especially  by 
Pellegrino,  1.  c.,  P.  iv.,  Sect,  x.,  n.   83  ;  Bouix,  de  Jud.,  Vol. 
II.,  p.  570. 

338.  The  reason  why  the  names  of  the  witnesses  may  be 
withheld  from  the  accused  until  after  their  testimony  has  be- 
come legalized  either  by  the  defendant's  declaration  or  their 
repetition,  as  explained,  is,  that  until  the  testimony  of  the 
witnesses  examined  in  the  informative  process  which  pre- 
ceded the  citation  of  the  accused,  has  been  legalized  either 
by  the  declaration  of  the  accused  (legit  imatio  proccssus  per 
declarationem),  or  by  the  repetition  (legitimatio  proccssus  per 
rcpctitioncm    tcstiuni),  it   is  looked    upon  by  the  law    of  the 
Church  as  of  no  force  whatever  as  against  the  accused,   or 
as  proof  of  his  supposed  guilt.     In  fact,  these  witnesses  are 
regarded   as  not    having  given  their  testimony  at  all,    as 
yet,  against  the  accused. 

339.  If  therefore  their  names  were   made   known   to  the 
accused  before  their  testimony  became  legalized,  either  by 
declaration  or  repetition,  he  might  by  persuasion,  by  threats, 
money  or  even   violence,   cause  them  to  refuse  to  repeat 
their  testimony,  or  at  least,  to  tell  the  truth,  and  thus  he 
might  frustrate  the  ends  of  justice.     It  is  to  prevent  this  con- 
tingency or  danger  of  intimidation  or  bribery,  that  the   law 
of  the  Church  enacts  that  the  names  of  the  witnesses  need  not 
be  communicated  to  the  accused,  until  after  their  testimony 
has   been    legalized,  as  above  explained.      We  say,  "  need 
not ;"  for  where  there  is  no  such  danger,  the  names  of  the 
witnesses  may  be  made  known  to  the  accused  at  any  stage 
of  the  proceedings.     For,  while  the  judge  need  not,  he  may, 
if  he  wishes,  communicate  their  names  to  the  accused,  even 
before  their  testimony  has  been  legalized. J     A  fortiori  the 

1   Bouix,  de  Jud.,  vol.  ii.,   p.  570. 


From  the  Citation  to  the  Defence  of  the  Accused.    141 

testimony  of  the  witnesses,  without  their  names,  may  be 
communicated  to  the  accused  at  any  stage  of  the  trial,  even 
before  the  legalization  of  their  testimony  or  the  processus 
publicatio. 

340.  The  above  teachings,  to  wit,  that  the  names  of  the 
witnesses  must  be  communicated  to  the  accused,  together 
with  their  testimony,  in  the  publication  of  the  informative 
process  to  the  accused,  which  takes  place  according  to 
article  xxvi.  of  the  Instructio,  is  also  maintained  by  recent 
canonists  who  wrote  after  and  commented  upon  the  In- 
structio of  the  S.  C.  EE.  et  RR.,  dated  June  11,  1880,  of 
which  the  Instruction  Cum  Magnopcre  is  a  copy.  These  can- 
onists apply  the  teaching  in  question  to  article  xxvi.  of  the 
Instructio  now  under  discussion.  Thus  Rota, *  explain- 
ing article  xxvi.  of  the  Instructio  of  1880, — which  is  the 
same  as  article  xxvi.  of  our  Instructio — says :  "  Contestatio 
delicti  (art.  xxvi.),  exigit  processus  publicationem.  .  .  Ast 
imprimis  recte  cognoscendum  est,  quas  ista  publicatio  re- 
quirat,  et  in  quo  prsecipue  consistat.  .  .  Igitur  oportet  im- 
primis, ut  reus  declaret  (et  de  hoc  constare  debet  in  actis), 
se  habere  testes  pro  rite  et  recte  receptis,  et  legitime  ex- 
aminatis,  salvis  exceptionibus  et  repetitionibus  qure  occurre- 
re  possint."  Hac  a  reo  emissa  declaratione,  et  in  Actis 
recepta,  Judex  debet  Acta  processus  offensivi  publicare, 
mandando  ut  omnia  alta  et  clara  voce  legantur,  et  postea 
copiam  ipsorum  dando.  .  .  Quaeres  forsan,  an  danda  sit  co- 
pia  actorum,  cum  nominibus  ct  cognominibus  testium,  ubi  hasc 
reus  petierit.  Ad  solvendam  hanc  questionem,  opus  est 
distinctione :  vel  enim  agitur  de  reo  examinato,  qui  de- 
claravit  sc  habere  testes  pro  rite  cxaminatis  ct  receptis,  vel 
non  .  .  .  In  primo  casu  copia  est  concedenda  omnium  reper- 
torum  cum  nominibus  ct  cognominibus  testium,  ut  possit  non 
tantum  contra  eorum  dicta,  sed  etiam  contra  eorum  pcrsonas 

1   Enchir.,  p.  471,  n.  713,  714,  715. 


142  The  Trial  Continued — 

excipere,  puta  si  fuerint  inimici,  socii,  inliabilcs  etc.  Patet 
quod  hoc  ad  defensionem  pertinet,  et  denegari  a  judice 
nequit." 

341.  In   the   second  case,  namely,  where  the  accused  de- 
clines to  make  the  above  declaration,     Rota  teaches  that 
the  names  of  the  witnesses  need  not  be  given  to   him  until 
after  their  testimony  has  been  legalized  by  repetition. 

342.  In  like  manner,  Droste, *  having  described  the  exam- 
ination of  the  accused,  as  pointed  out  in  article  xxv.  of  the 
Instructio,  says  :  The  confrontation  of  the   witnesses  with  the 
accused,  though  distinct  from,  is  yet,  as  a  matter  of  fact, 
connected  and  interlinked  with  the  above  examination  of 
the  accused.     This  confrontation,  where  the  accused  appears 
for  the  examination  prescribed  in  article  xxv.  of  the  Instruc- 
tio,  is  so  essential  in  criminal  proceedings,  that  its  omission 
renders  the  proceedings  wholly  null  and  void, 2  and  makes  it 
necessary  to  begin  the  trial  over  again  ex  intcgro. 3      This  is 
also  indicated  by  article -xxvi.    of  the  Instruct™  of  June   11, 
1880,  which    says:    "  Proceditur    indc   ad  contest  at  ioncvi  facti 
criminosi,  et  conclusioncm  habit  arum,  ad  retinendnm  accusatum 
criminosum  lapsumquc  in  rclativis  pccnis  canonicis" 

343.  Droste4  next  explains  what  is  meant  by  this  confron- 
tation.    In  common  with  all  canonists,  he  says  there  are 
two  kinds  of  confrontation ;  one  personal;  the  other  verbal. 
After  stating  that  it  is  discretionary  with  the  judge  to  allow 
of  the  personal  confrontation,  he  continues:     "But  the   ver- 
bal confrontation  is  obligator}-.     It  consists  in  this,  that  the 
names  of  the  witnesses  are  read  or  given  to  the  accused,  to- 
gether with  their  testimony,  as  also  the  conclusions  drawn 
from  them  by  the  procurator  fiscalis.     It  cannot  be  omitted  ; 
and  the  accused  must,  as  a  rule,  be  present  at  it,  in  person.  . . 
This  verbal  or  personal  confrontation  is  called  legitimatio 


1  P.    120,    121,   Paderborn,    1882.       -  S.  C.  EE.  et  RR.  litterce  circulares,  1851. 
3  S.  C.  EE.  et  RR  ,  1852.  <  L.  c.,  p.  121. 


From  the  Citation  to  the  Defence  of  the  Accused.    143 

proccssus.  .  .  The  accused  has  the  right  to  attack,  in  every 
possible  manner,  the  person  of  the  witnesses,  as  also  their 
testimony.  This  is  the  meaning  of  article  xxvii.  of  the  In- 
struct io  :  "  Qunm  accusatus  tali  modo  habeat  plena  m  cognition- 
cm  cjus  quod  in  actis  cxtat  contra  sc,  ultra  quod  rcspondcre  possit, 
jure  sc  dcfcndcndi  a  scmctipso  etiain  uti  valet."  This  author 
reiterates  the  same  teaching  on  page  56  of  his  work. 

344.  The  Third  Plenary  Council  of  Baltimore,  n.  314,  takes 
a  different  view,  and  teaches  that  the  names  of  the  witnesses 
are  made  known  to  the  accused,  or  rather  to  his  advocate, 
not  at  the  present  stage  of  the  proceedings  as  described  in 
article  xxvi.  of  the  Instructio,  but  only  when  the  trial  proper 
is  entirely  over,  and  when  the  final  summing  up  is  to  take 
place,  as  described  in  article  xxxii.  of  the  Instructio.     The 
words  of  the  Council,  in  explaining  article  xxvi.  of  the  In- 
structio, are :      "  Itaque  coram    accusato  legendse  sunt  tes- 
tium     depositiones ;      et    conclusiones    ex     illis     deductee. 
Inquisitus,  ubi  ex  his  noverit,  quse  in    actis  contra   ipsum 
relata  sunt,  ad  ea  respondere  potest  ac,  si  velit,  utetur  jure 
defensionis  a  se  ipso  in  scriptis  peragendse  (a.  xxvii.)     Xom- 
ina  autc'm  tcstium  durante  proccssus  confectionc  non  prodantur, 
sed  tantum  publicato  processu   (i.e.,  defensoris  inspection! 
submisso,  juxta  a.  xxxii.),  ut  possint  exceptiones  contra  eos 
fieri." 

345.  The  inconvenience  which  this  interpretation  put  up- 
on article  xxvi.  of  the  Instructio,  by  the  Tliird  Plenary  Coun- 
cil of  Baltimore  might  cause,  is  that  the  accused  or  his  advo- 
cate, to  whom  the  names  of  the  witnesses  are  revealed  only 
at  that  late  stage  of  the  proceedings,  would  even  then,  as 
the  Tliird  Plenary  Council  (n.  314)  also  expressly  states,  have 
the  right  to  except  against  the  persons  of  the  witnesses ;  that 
is,  he  would  have  the  right  to  produce  witnesses  to  show 
that  the  opposing  witnesses  were,  for  instance,  his  enemies, 
etc.     Hence  the  judge  would  be  obliged,  at  that  late  stage, 
to   admit   and  examine   the  witnesses  of  the  accused,  and 


144  The  Trial  Continued — 

thus,  so  to  say,  re-open  the  trial,  after  it  had   been  already 
closed  according  to  article  xxix.  of  the  Instruct™. 

346.  Observe,  however,  that  while  the  explanation  of  arti- 
cle xxvi.  of  the  Instruct™,  as  given  by  the  Third  Plenary  Coun- 
cil of  Baltimore,  does  not  make  it  obligatory  upon  the  auditor 
or  Bishop  to  disclose  the  names  of  the  witnesses,  prior  to 
that  publication  which  takes  place  according  to  article  xxxii. 
of  the  Instruct  to,  neither  does  it  forbid  these  names  to  be  made 
known  before  this  time.     In  other  words,  the  explanation  of 
article  xxvi.,  as  made  by  the  Third  Plenary  Council,  gives  the 
judge  discretionary  power  to  reveal  the  names  of  the  wit- 
nesses to  the  accused,  either  at  the  publication  which  takes 
place  according  to  article  xxvi.,  or  only  at  the  publication 
prescribed  in  article  xxxii.  of  the  Instrnctio. 

347.  However,  from  the  fact  that  the  names  of  the  wit- 
nesses need  not  be  communicated  to  the  accused  until  after 
the  Icgitimatio processus  offcnsivi  or  infonnatiri,  it  would  be  a 
mistake  to  infer  that  they  need  not  be  made  known  to  him 
at  all.     For,  the  law  of  the  Church,  as  still  in  full  force,  ex- 
pressly enacts  that  in  all  criminal  and  disciplinary  causes, 
"  non  solum  dicta,  sed  etiam  noinina  ipsa  testium  sunt  ei  treo. 
ut  quid,  et  a  quo  sit  dictum,  appareat)  publicanda.  .  .  ne  per 
suppressionem  nominum  infamandi  audacia  prasbeatur."  1 

348.  This  is  in  accord  with  the  natural  law  itself,  since  the 
publication  of  these  names  is  necessary  to  a  legitimate  de- 
fence, guaranteed  by  the  very  law  of  nature.     In  fact,  it  is 
plainly    an  essential  part  of  a  legitimate  defence  to  show 
that  the  witness  of   the  prosecution  is  either  actuated   by 
personal  motives,  such  as  enmity,  jealousy,  revenge,  or  is 
otherwise  unworthy  of  belief — v.g.,  because  he  is  known  to 
be  a  liar,  or  given  to  crime,  or  excommunicated.     The  cred- 
ibility of  a  witness  depends,  in  the  estimation  of  all  mankind, 
mainly  upon  his  character.     If  that  is  good,  honorable,  and 

1  Innoc.  iii.  Cap.  Qualiter  et  quando  24  tie  accus,   (v.  i)  1216. 


From  the  Citation  to  the  Defence  of  the  Accused.    145 

disinterested,  his  testimony  is  worthy  of  belief.  If  it  is  not, 
his  testimony,  no  matter  how  good  apparently,  has  generally 
speaking,  no  weight.  For,  who  will  believe  a  person  desti- 
tute of  virtue,  religion,  morality,  or  honor? 

349.  It  is,  therefore,  of  the  greatest  importance  for  the 
accused    to   show  up  the  character   of  the  witnesses,  and 
thus  to  overthrow  their  credibility.     But  this  he  cannot  do, 
unless  he  knot's  their  names  and  tcho  they  are.     Consequently, 
it  is  certain  that  except  in  causes  of  heresy,  the  names  of 
the  witnesses  must  always  be  communicated  to  the  accused 
or  his  advocate,  so  that  he  may  be  able  to  overthrow  their 
credibleness,  by  producing  other  witnesses  and  proofs  show- 
ing the  character  of  the  witnesses  of  the  prosecution. 

350.  Nor  is  this  rule  or  law  to  be  violated  even  where  it 
is   feared  that  harm   may  come  to  the   witnesses.     For  in 
most  cases,  this  fear  is  imaginary   rather  than   real.     Thus, 
so  far  as  regards  the  danger  of  a  libel  suit  in   the  secular 
courts,  it  is  certain  that  no  witness   who  testifies  before  an 
ecclesiastical  court,  can  be  sued  for  libel  or  damages,  in  a 
secular  court,  unless  it  is  clear  and  notorious,   that  he  has 
with  malice  prepense  given  false  testimony.     The  reason  is 
that  our  secular  courts  recognize  the  laws  and  regulations 
of  the  Church  as  having  the  force  of  contracts  between  the 
Church  and  its  members,  and  will  enforce  them  as  contracts 
freely  entered    into    by   the    parties.      Hence,  our  secular 
courts  will  not  interfere  with  the  right  of  our  ecclesiastical 
tribunals  to  summon  and  examine  witnesses,  and  the  obliga- 
tion of    the    latter    to    testify.     Consequently,  our   secular 
courts  will  regard  the  testimony  of  such  witnesses  as  privi- 
leged communications  or  acts,  and   will,  therefore,  refuse  to 
entertain    any    libel  suit,  except  perhaps    where  malice  is 
notoriously  shown  to  exist.     If  the  latter  were  the  case,  a 
witness  would  fully  deserve  to  be  prosecuted. 

351.  Again,  it  must  be  borne  in  mind  that  the   common 
good  of  all  must  be  preferred  to  the   private  good   of  indi- 


146  The  Trial  Continued — 

viduals.  Now  the  common  good  requires  that  an  accused 
shall  not  be  deprived  of  a  legitimate  means  of  defence,  since 
otherwise,  no  person,  however  innocent,  could  be  secure 
against  conviction  or  condemnation.  From  all  this  it  will 
be  seen  that  the  names  of  the  witnesses  must  always  be  com- 
municated to  the  accused  or  his  advocate,  except  in  causes 
of  heresy ;  that,  however,  this  publication  need  not  be  made 
until  after  the  testimony  has  been  legalized  as  stated  above. 

352.  We  have  just  said,  except  in  causes  of  heresy  :    for  the 
law  of  the  Church  expressly  excepts  these  causes  from  the 
above  law  requiring  the  publication  of  the  witnesses'  names, 
and  enacts  that  in  causes  of  heresy,  which  are  tried  before 
the  Holy  Office  or  tribunals  of  the  inquisition,  the  names  of 
the  witnesses,  though  not  their  testimony,  may,  as  a  rule,  be 
altogether  withheld  from  the  accused.1     See  our  Elements, 
Vol.  II.,  n.  1323. 

In  causes  of  sollicitatio  also,  the  name  of  the  person  so- 
licited and  making  the  denunciation,  cannot  be  manifested  to 
the  accused,  owing  to  the  danger  of  thereby  causing  -the 
violation  of  the  sigillum  sacranicntalc? 

353.  We  have  seen  that  the  proccssns  informations  is  legal- 
ized either  by  the  declaration  or  waiver  of  the  accused,  or 
by  the  repetition  of  the  witnesses  ;  that  after  the  process  is 
legalized,  its  publication  takes  place.     We  shall  here  add  a 
few  explanations  respecting  both  the  above  modes  of  legal- 
ization and  also  the  publication. 

In  regard  to  the  legalization  by  the  declaration  of  the  ac- 
cused, it  must  be  borne  in  mind  that  even  when  the  accused 
makes  this  declaration  or  waiver,*  he  nevertheless  retains 
the  full  right  to  object  both  against  \hz  persons  and  the  tcsti- 

1  Cap.  20,  de  hoeret.  in  6°  (v.  2.) 

-  Instr.  S.  Officii,   1867,  given  in  Konings,  vol.   I.,  p.  Ixiv. 

3  Todeschi,  in  his  Manual,  pp.  508,  509,  says  this  declaration  is  now  seldom  or 
never  made  ;  but  that  the  repetition  of  the  witnesses  always  takes  place.  Rota  (p. 
472),  however,  says  the  opposite. 


From  the  Citation  to  the  Defence  of  the  Accused.    147 

mony  of  the  witnesses,  and  also  to  cross-examine  them.  For, 
by  this  declaration,  the  accused  simply  declares  that  though 
the  witnesses  were  examined  prior  to  the  contestatio  delicti, 
yet  he  consents  to  look  upon  them  as  though  they  had  been 
examined  after  the  contestatio,  but  not  that  he  considers 
either  their  persons  or  their  testimony  as  unobjectionable. 
Hence,  too,  he  should,  for  greater  safety,  when  he  makes  the 
above  declaration,  expressly  state  that  he  reserves  to  him- 
self the  full  right  to  except  against  the  persons  and  testi- 
mony of  the  witnesses,  and  also  to  cross-examine  them.1 

354.  Concerning  the  legalization  of  the  informative  process 
by  the  repetition  of  the  witnesses,  we  have  but  one  or  two 
explanatory  remarks  to  subjoin  here.     We  have  said  above 
that  if  the  accused  refuses  to  legalize  the  informative  pro- 
cess by  his  waiver,  the  witnesses  must  all  be  examined  over 
again.      The  reason  is,  because  otherwise  their  testimony 
will  have  no  legal  force  whatsoever,  so  far  as  concerns  the 
proving  of  the  crime.2     For,  as  we  have  shown  above,  under 
article  xix.,  no  evidence  has  any  legal  effect,  as  proof,  unless 
it  is  produced  in  court,  after  the  lit  is  contestatio,  and  conse- 
quently after  the  citation  of   the  accused.     Now  the  wit- 
nesses   who    were  examined  in  the  proccssus  inforniativus, 
were  produced  and    examined    nondnm  constitute  nee  citato 
reo.     Consequently  it  is  the  unanimous  opinion  of  canonists 
that  these    witnesses,    no    matter    how    numerous,    prove 
nothing  whatever  against  the  accused,  unless  they  are  ex- 
amined over  again,  or  the  accused  waives  his  right  to  have 
them  repeat  their  testimony. 3 

355.  There    are  two   ways    in   which    the   witnesses  ex- 
amined in  the  informative  proceedings    may   repeat  their 

1  For  the  formula  in  which  he  may  do  this,  see  Pellegrino,  P.  iv.  Sect,  x., 
n.  79. 

-  The  Ada  S.  Sedis,  vol.  xv.,  p.  394,  thinks  it  safest  always  to  examine  the  wit- 
nesses over  again,  after  the  citation  of  the  accused  and  the  contestatio  delicti. 

3  Bouix,  de  Jud.,  vol.  ii.,  p.  218. 


148  The  Trial  Continued — 

testimony,  after  the  litis  contcstatio  :  one,  in  the  presence, 
the  other,  in  the  absence  of  the  accused.  The  first  takes 
place  in  this  manner :  The  accused  is  cited  and  allowed  to 
be  present,  not  only  when  the  witness  takes  the  oath  prior 
to  testifying,  but  also  at  the  examination  itself,  and  to  cross- 
examine.  This  is  called  the  personal  confrontation  (confron- 
tatio  personalis),  because  the  accused  and  witness  confront 
each  other  in  person.  See  our  Elements,  Vol.  II..  n.  839, 

HI/,   1122. 

356.  The  second  mode  takes  place  thus:     The  accused  is 
cited  and  allowed  to  see  the  witnesses  take  the  oath  before 
being  examined,  and  also  to  except  against  their  persons. 
But  he  is  not  permitted  to  be  present  at  the  examination 
itself ;  however,  after  the    examination  is  over,   the  entire 
testimony,  together  with  the  names  of  the  witnesses,  must  be 
communicated  to  him.      Hence,    this    mode  of  examining 
witnesses  is  termed  verbal  confrontation  (confront at io  rerbalis\, 
because  the  accused  is  confronted,  so  to  say,  only  with  the 
words  (verbd)  or  testimony  of  the  witness.      See  our  Ele- 
ments,Vo\.  II.,  nos.  838,  sq.,  and  no.  1118. 

357.  The  law  of  the  Church,  as  in  force  at  present,  also 
with  us,  under    the  Instruction  Cum   Magnopcrc,    allows  of 
both  modes,  namely  of  the  personal  and  the  verbal  confron- 
tation. *     However,  usage  and  custom  favor  the  personal,  ex- 
cept where  grave  inconveniences  would  result  from  it.     In 
fact,  the  mere  verbal  confrontation  is  a  long,  tedious,  in- 
direct  and    withal  unsatisfactory  procedure.      It   makes  a 
cross-examination  in  the  proper  sense  of  the  term  scarcely 
possible.     For  the  party  against  whom  the  witnesses  testify 
being  excluded  from  the  hearing,  can  merely  hand  in  his 
questions  for  cross-examination,  before  the  beginning  of  the 
examinations.     But  how  frame  cross-questions  before  it  is 
known  what  the  witness  will  answer  ?     And   yet  a  fair  and 

1  Pellegr.,  1.  c.,  p.  4,  5,  II,  n.  26. 


From  the  Citation  to  the  Defence  of  the  Accused,    149 

full  cross-examination  is  the  best  crucible  of  the  veracity,  ac- 
curacy and  reliability  of  the  testimony  given  by  a  witness. 

358.  Hence,  the  confronting  of    the  witnesses  with    the 
party  against  whom  they   testify  is  at  present  the  rule  in  all 
secular  courts,  not  only  of    the  United   States,  but  of   the 
whole  civilized   world.      Thus,  as  Walker *    says,    "  in  the 
United  States,   every   prisoner  has  a  right  to  meet  his  wit- 
ness  face    to  face."      After   the   examination-in-chief,    says 
Hilliard, 2  or  even  after  the  witness  has  been  sworn,  but  not 
yet  examined,  the  adverse  party  has  the  privilege  of  cross- 
examining.      And  he  may  propose  leading  questions.     The 
chief  object  of  the  cross-examination  is  to  detect  misstate- 
ments  and  inaccuracies. 3     This  holds  so  strictly  in  our  secu- 
lar courts,  that    the  testimony  of  witnesses  has    no  value 
whatever,  unless  the  adverse    party  has  been    allowed  to 
cross-examine. 

359.  For  these  reasons,  no  doubt,  the  personal  confronta- 
tion has  been    universally   introduced  in    the  ecclesiastical 
courts  of  France,  and  some  other  Catholic  countries. 4     It  is 
allowed  in  the  United  States,  according  to  the  Instructions 
of  the  S.  C.  de  P.  F.  dated  respectively  1878  and  i884.5     In 
reality,  this  method,  or  the  personal  confrontation  is  the 
simplest,   most  natural,  expedite  and  satisfactory  mode  of 
procedure. 

360.  Yet  there  wrill  be  cases,  especially  in  the  ecclesiastical 
courts,  where  the  personal  confrontation   may  be  unbecom- 
ing, nay,  even  hurtful. 6     Consequently,  it  must  be  left  to 
the  conscientious  discretion  of  the  auditor  or  judge  to  per- 
mit the  personal,  or  merely  the  verbal  confrontation.     As 
to  the  mode  of  procedure  either  when  the  personal  con- 
frontation or  only  the  verbal  takes  place,  see  our  Elements, 
Vol.  II.,  n.  1118-1123. 

1   American  Law.  p.  727.  "  Elements  of  Law,   p.  305.  ^  Ib. 

«  Cf,  Todeschi ,  p.  509.  5  Droste,  p.  121  ;   Rota,  p.  471. 

6  Pellegrino,  Part.iv.,  Sect,  xi.,  n.  26. 


150  The  Trial  Continued — 

361.  However,  in  either  case — i.e.,  whether  the  personal 
or  only  the  verbal  confrontation  takes  place,  the  witnesses  of 
the  processus  informativus,  must  repeat  their  testimony  with 
all  the  formalities  laid  down  in  articles  xvii.,  xviii.,  xix.,  and 
therefore  in  the   same    manner,  in   which  they   would   be 
obliged  to  testify,  if  they  had  not  testified  already.     In  other 
words,  they  must  be  cited  ;  then  sworn  ;  heard  separately, 
etc. 

362.  After  the   processus  informativus  has   been  thus  le- 
galized (legitimatio  processus),  either    by  the  declaration  of 
the  accused,   or  by  the  repetition  of  the  witnesses,  as  de- 
scribed, the  publicatio  processus  takes  place,  as  we  have  seen : 
in  other  words,  the  entire  proceedings  of  the  informative 
process  are  communicated  to  the  accused.     In  this  publicatio, 
both  the  names  and  the  testimony  of  the  witnesses  must  be 
given  the  accused,  as  we  have  shown,  so  that  he  may  be 
able  to  prepare  for  his  defence.     See  our  Elements,  Vol.  II., 
nos.  855,  1120,  1 121,  1124,  1126. 

363.  The  nature  and  extent  of    this  publication  is    thus 
described  by   Pope   Innocent  III.,  in  his  constitution  Quo- 
niav?    (anno.  1216):      "  Judex     semper    adhibeat    publicam 
personam,  aut  duos  viros  idoneos  qui  fideliter  universa  judicii 
acta  conscribant :  videlicet  citationes,  dilationes,  recusationes, 
exceptiones,  petitiones,  responsiones,  interrogationes,  con- 
fessiones,    testium  depositiones,  instrumentorum   productio- 
nes.     Et  omnia  sic  conscripta  partibus  tribuantur"  * 

364.  We  observe  that  the  diocesan  prosecutor  is  at  liberty 
to  produce,  after  the  lifts  contestatio,  and  before  the  publicatio 
processus,  and   within  the  probatory    term   or   terminus  ad 
produccndum  omnia,  assigned  him  by  the  auditor  or  judge, 
other    witnesses,  documents  and    proofs,   besides  those  al- 
ready produced  and  examined  in  the  informative  process. 3 


1  Cap.  ii,  de  prob.  (II.  19).  *  Cf.  Prael.  S.   Sulp.,  vol.  iii.,  n.  678. 

3  Pellegr.,  1.  c.,  Part.iv.,  Sect,  ix.,  n.  59. 


From  the  Citation  to  the  Defence  of  the  Accused.    151 

We  say  before  the  publicatio  processes  infonnativi.  Can  he 
also  do  so  after  the  publication  of  the  processus  informath-i 
or  offcnsivi  ?  We  must  distinguish  between  direct  witnesses 
and  proofs,  and  rebutting  witnesses.  He  certainly  can  pro- 
duce new  rebutting  witnesses  for  the  purpose  of  breaking 
down  the  testimony  of  the  witnesses  for  the  defence,  as  we 
show  in  our  Elements,  Vol.  II.,  n.  1132-1133,  p.  253. 
Whether  he  can  also  produce  new  direct  witnesses  and 
evidence,  to  corroborate  his  charges,  is  controverted,  some 
canonists  affirming,  others  denying.  Those  who  hold  the 
negative,  contend  that  the  defence  alone  can  produce  such 
evidence,  once  the  informative  process  has  been  published. 1 
The  safest  course,  therefore,  is  for  the  prosecutor  to  produce 
all  his  direct  evidence  prior  to  the  publication  of  the  pro- 
cessus infortnativus. 

365.  If  any  such  new  evidence  is  produced  by  the  prose- 
cutor, it  must  be,  of  course,   communicated  to  the  accused, 
either  simultaneously  with,  or  subsequently  to  the  publica- 
tion of  the  processus  informativus,  according  as  it  is  submitted 
by  the  prosecutor,  either  before  or  after  the  publication  of 
the  informative  process.     For  whatever  evidence  or  proof 
is  advanced  by  the  prosecution,  must  be  communicated  to 
the  defendant  for  his  defence.     See  our  Elements,  Vol.  II.,  n. 
1126,  sq. 

366.  This  communication  of  all  the  evidence  of  the  prose- 
cution to  the  defendant  is  a  necessary  condition  and  part  of 
a  legitimate  defence,  and  therefore,  is  absolutely  obligatory, 
even  in  summary  trials;  hence  if  it  is  omitted,  the  entire  pro- 
ceedings are  null  and  void.2     It  is  clearly  prescribed  by  the 
present   Instruction  in  articles  xxvi.  and  xxvii.8     See  our 
Elements,  Vol.  II.,  n.  1120-1126. 

367.  We   observe   here,  in   passing,   that   there  are  two 


1  Pellegr.,  1.  c.,  Part  iii.,  Sect,  x.,  n.  20.          *  Pellegr.,  Partiv.,  Sect,  x.,  n.  8. 
3  Rota,  p.  472;  Drbste,  pp.  56,  120,  sq. 


152  The  Trial  Continued:— 

kinds  of  publicatio  processus :  one  is  the  communication  of 
the  evidence  of  the  prosecution  made  to  the  defendant  for  his 
defence.  This  is  called  publicatio  processus  informativi  or 
also  offcnsivi  and  takes  place  as  soon  as,  and  whenever  the 
prosecutor  has  presented  all  his  evidence  after  the  lit  is  con- 
testatio.  The  other  is  the  communication  of  the  entire 
evidence  both  of  the  prosecution  and  of  the  defence  to  the  prose- 
cutor as  well  as  the  accused,  to  enable  both  parties  to  make 
their  final  summing  up.  This  is  termed  the  publicatio  totins 
processus,  turn  offcnsivi,  turn  defensivi,  or  rather  the  publicatio 
processus  defensivi,  and  takes  place  after  the  conclusio  in  causa 
in  the  manner  laid  down  by  the  present  Instruction,  in 
articles  xxxii.  and  xxxiii. 

368.  We  observe,  also  in  passing,  that  the  auditor  or 
judge,  either  in  the  same  decree  in  which  he  orders  the 
publicatio  processus  offensivi,  or  immediately  afterwards, 
assigns  the  accused  a  suitable  delay  (at  least,  if  the  accused 
so  desires,)  v.g.,  five  or  eight  days,  to  prepare  for,  and  pre- 
sent his  defence, — i.e.,  to  produce  his  witnesses,  documents, 
etc.1  For  the  formula  of  this  decree,  See  Pellegr.,  P.  iv.,  S. 
x.,  n.  79. 

1  Cf.  Pellegr.,  Part.iv.,  Sect,  x.,  n.   79. 


CHAPTER  IV. 

THE    DEFENCE — CLOSE    OF    THE    TRIAL. 

(FROM  ART.  xxvu.  TO  ART.  xxix.) 

ART.  XXVII. 
The  Defence. — Mode  of  Conducting  it. 

XXVII.  "  Inquisitus,  ubi  ex  his  noverit,  quae  in  actis  contra  ipsum 
relata  sunt,  ad  ea  respondere  potest,  ac  si  velit,  utetur  jure  defensionis  a 
se  ipso  in  scriptis  peragendae." 

369.  The  preceding  article  discusses  the  manner  of  prov- 
ing or  establishing  the  guilt  of  the  accused.  The  present 
and  subsequent  articles  (xxvii.,  xxviii.)  speak  of  the  de- 
fence, and  give  an  outline  of  what  the  accused  can. do,  be- 
fore the  trial  is  ended  or  closed  (processus  clausris),  in  the 
manner  stated  in  article  xxix.  In  accordance  with  the 
general  law  of  the  Church,  and  the  very  law  of  nature,  the 
present  and  subsequent  articles  give  the  accused  the  right 
(a)  to  be  fully  informed  of  all  the  charges  and  proceedings 
which  are  on  record  in  the  curia  against  him  ;  (ft)  to  answer 
these  ^charges :  that  is,  to  produce  counter-evidence,  such 
as  witnesses,  documents,  and  the  like.1  This  is  meant  by 
the  words  ad  ea  respondere  potest.  (c]  Also,  to  present  a 
full  defence  in  writing,  (a7)  to  obtain  the  necessary  delays, 
in  order  to  enable  him  to  prepare  properly  to  exercise 
these  rights  of  defence. 

Accordingly,  as  soon  as  the  legalization  of  the  processes 
inf or  via  tints  has  taken  place,  the  auditor  or  judge,  as  we  have 
shown,  proceeds  at  once  to  publish  or  communicate  to  the 

1  Acta  S.  Sedis,  vol.  xv.,  p.  393. 


154  The  Defence — Close  of  the  Trial. 

accused,  the  entire  acts,  proceedings  and  proofs  of  the  pro- 
cessus  informativus  or  offcnsivus,  and  at  the  same  time  grants 
the  accused  a  suitable  delay  to  prepare  his  defence,1  and 
consequently  to  present  all  his  witnesses,  documents,  or 
other  evidence  he  may  wish  to  produce.  This  delay  is 
called  terminus  ad  producendum  omnia,  or  terminus  ad  alle- 
gandum  quidquid  vult,  ne  condemnetur,  or  also  terminus  ad 
omnes  suas  defensiones  faciendas" 

370.  When  the  accused  thus  knows  all  the  charges  and 
proofs  that  stand  against  him  on  record,  he  has  the  right,  as 
the  present  article  says,  to  defend  himself — respondere  potcst. 
Observe   here   that  this   phrase   respondere  potest  does  not 
mean  simply  the  right  to  make  answers  personally,  or  to 
make  a  speech  or  oral  argument.     It  signifies,  and  is  em- 
ployed by  canonists  to  signify,  particularly   in  reference  to 
criminal  and  disciplinary  causes,  the  whole  defence  or  the 
complete  answer,  whether  by  oral  argument,  or  by  witnesses, 
documents,  etc.,  which  the  accused  opposes  to  the   charges 
and  proofs  of   the   prosecution.2     The  Ada  S.   Sedis,  Vol. 
XV.,  p.  393,  in  commenting  upon  the  Instruction  of  1880, 
expressly  interprets   the    clause  respondere  potest,  as  giving 
the  accused  the  full  right  to  produce  witnesses,  documents, 
etc. 

371.  This  full  right  of  defending  himself,  which  the  In- 
struction grants  the  accused,  is  in  harmony   with  all  laws, 
natural,  human  and  divine.     For,  as  we  say,  in  our  Elements, 
Vol.  II.,  n.  1128,  "not  only  positive  and  human,   but  also 
natural   and   divine   law,   gives   the   accused   the  right   to 
defend  himself,"  and  therefore,  imposes  upon  the  ecclesiasti- 
cal judge  the  obligation  of  granting  him  the  fullest  oppor- 
tunities to  make  use  of  this  right.     Consequently  not  even 
the  Pope  himself  can  take  away  this  right.     For,  proceeding 


1  Prael.  S.  Sulp.,  vol.  iii.,  n.  678,  p.  73. 

2  Schmalzgr.,  1.  2,  t.  3,  n.  10;   Rota,  p.  415. 


The  Defence — Close  of  the  Trial.  155 

as  it  does  from  natural  law,  it  cannot  be  taken  away  by  any 
power  on  earth.  Thus  Pope  Clement  V.,  says  :  "  Nee  de- 
fensionis  (quas  a  jure  provenit  naturali)  facultas  adimi 
valuisset :  cum  ilia  Imperatori  (Papae)  tollere  non  licuerit, 
quag  juris  naturalis  existunt."  * 

372.  Wherefore  the  auditor  or  judge  conducting  the  com- 
pilatio  processus  *  is  bound  ex  officio  to  give  the  accused  the 
fullest  right  to  defend  himself,  and  to  assign  him  a  suitable 
term  for  that  purpose,  even  though  he  does  not  ask  for  it.3 
Nay,  the  accused  cannot,  even  though  he  wishes,  absolutely 
or  unconditionally  renounce  the  right  of  defending  himself, 
especially  in  a  criminal  cause  where  he  is  liable  to  a  severe 
punishment ;  and  the  auditor  or  judge  cannot  allow  of  such 
renunciation,  since  it  would  be  null  and  void.  This  is  also 
plainly  indicated  in  our  Instruction,  article  xxxi.,  which 
enacts,  that  when  the  accused  refuses  to  select  an  advocate 
for  himself,  the  auditor  or  judge  shall  ex  officio  designate 
one  for  him.  We  have  said  simply ;  for  if  the  accused,  after 
being  given  a  term  to  produce  his  defence,  deliberately 
waives  the  right  of  defence,  saying  that  he  does  so,  knowing 
for  certain  that  he  has  no  defence  whatever  to  make,  then 
such  renunciation  is  valid,  and  therefore  admissible  by  the 
judge  ;  otherwise  not.4 

374.  The  law  of  the  Church  goes  even  a  step  farther  and 
enacts  that  even  where  the  accused  has  confessed  his  guilt,  he 
cannot  be  allowed  to  renounce  his  defence  ;  but  that  he  must 
be  given  a  term  to  defend  himself  even  against  his  own  con- 
fession. This  is  the  unanimous  opinion  of  canonists.  Thus 
Pellegrinus  teaches  : 8  "  An  defensiones  sint  reo  examinato 
necessario  dandas,  sive  confessus  fuerit  delictum,  sive  non  ? 
Notandum  erit,  quod  communis  et  certa  conclusio  Doctor- 

1  Clem.  Pastoralis  2.  (II.  11);  Cf.  Clem.  Saepe,  de  V.  S. 

2  Pellegr.,  Fart.iv.,  p.  417,  also  uses  this  phrase  as  meaning  the  whole  trial. 

3  Rota,  1.  c.,  p.  474.     4  Pellegr.,  Part.iv.,  Sect,  x.,  n.  88;  Rota,  p.  475. 

5  Ib.,  n.  21. 


156  The  Defence — Close  of  the  Trial. 

um,  nemine  prorsus  discrepante  est,  quod  nemo  qualiter 
cunque  confessus  in  criminalibus  condemnari  potest,  nisi 
prius  assignetur  illi  terminus  ad  faciendas  suas  defensiones." 
The  reason  is  that  the  accused  can  defend  himself  against 
his  own  confession  in  many  ways  *—v.g.,  by  showing  that  it 
was  extrajudicial ;  or  made  inconsiderately,  or  under  fear, 
compulsion,  or, other  undue  pressure  or  excitement. 

375.  Finally  the  law  of  the  Church  favors  the  right  of  de- 
fence to  such  a  degree,  (a)  that  the  accused  must  be  allowed 
to  produce  witnesses,  documents  and  the  like,  in  his  own  de- 
fence, even  after  the  case  is  closed,  nay,  even  after  condem- 
natory sentence  has  been  already  passed  upon  him  :  and  if 
he  is  found   innocent,  even  at  this  stage,  the   execution   of 
the  sentence  must  be  stopped  ;  (£)  that  witnesses  who  are  not 
free  from  objection  and  are  not  altogether  trustworthy,  and 
who  consequently  cannot  be  produced  by  the  prosecution, 
may  yet  be  produced  by  the  defence  to  disprove  the  charge  ; 

(c]  that  while    laics  cannot,  as  a  rule,  testify  against  eccle- 
siastics and  for  the  prosecution,  they  can  do  so  for  the  defence  ; 

(d)  that  while,  especially  in  criminal  causes,  the  testimony 
of  men  is  preferable  to  that  of  women,  this  does  not  hold 
where  the  testimony  of  men  is  against  and  that  of  women  for 
the    accused  ;    since,  in   this  latter  case,  the   testimony    of 
women  should  be  preferred  to  that  of  men. s 

376.  Having  shown  that  the  accused  has  an  inalienable 
right  to  defend   himself,  let  us  now  see  in  what  this  right 
consists.     It  is  plain  that  the  chief  way  of  defending  one's  self, 
consists  in  overthrowing  the  arguments,  proofs,  etc.,  which 
have  been  brought  forward  by  the  prosecutor  to  establish  the 
guilt.     Now  the  force  of  these  proofs — v.g.,  of  the  testimony 
of  the  witnesses  for  the  prosecution,  cannot  be  broken  by 
the  mere  contrary  assertion  of  the  accused,  but  rather  by 
witnesses,  documents,  or  other  proofs  which  show  the  con- 

1  Pellegr.,  Part.iv.,  Sect,  x.,  n.  22.         =  Ib.,  n.  74.         3  Ib.,  n.  75,  76,  77. 


The  Defence — Close  of  t lie  Trial.  157 

trarv.  The  right  of  self-defence,  therefore,  means  that  the 
accused  has  the  right  to  produce  and  the  auditor  or  judge 
the  duty  to  receive  and  examine  all  witnesses,  documents 
and  other  proofs  which  are  adduced  by  the  defence,  and 
which  can,  in  any  way,  weaken  or  break  down  the  proofs 
adduced  by  the  diocesan  prosecutor. 1 

377.  Nay,  the  auditor  or  judge  is  obliged  ex  officio  to  admit 
not  only  those  witnesses  and  documents,   which  are  pro- 
duced by  the  accused,  but  also  all  others,  whom  he  may 
know  to  be  conducive  to  the  defence,  even  though  they  are 
not  submitted  by  the  defence.     This  is  the  teaching  of  can- 
onists, 2  and  is  clearly  confirmed  by  our  Instruction,  when  it 
says,  in  article  xi.:  "  Processus  ex  oflficio  instruitur.  .  .  et  us- 
que ad  terminum  perducitur  eo  consilio,  ut  omni  studio  ac 
prudentia  veritas  detegatur,  ac  turn  de  reitate  vel  innocentia 
accusati  causa,  eliquetur." 

378.  Having  seen  what  is  included  in  the  right  of  self- 
defence,  we  shall  now  discuss  the  manner  in  which  the  de- 
fence is  conducted.     As  we  explain  this  subject  fully  in  our 
Elements,  Vol.  II.,Nos.  1128-1134,  we  shall  here  but  give  an 
outline  of  what  we  there  discuss.     After  the  prosecution 
rests  and  the  whole  proceedings  have  been  communicated  to 
the  accused,   as  above  stated,  the  auditor  or  judge  assigns 
the     accused   a   term     for    the     defence — i.e.,     a     suitable 
time  for   producing  all  his  witnesses,  documents,  and  the 
like. 3     Thereupon  the  accused,  either  in  person  or  through 
his  advocate,  draws  up  and  presents  to  the  auditor  a  writ- 
ten outline  of  the  defence,  setting  forth  its  heads  (articuli 
dcfcnsorii]  and  promising  to  produce  the  requisite  witnesses, 
documents,  etc.4 

379.  On  the  da}-  appointed  for  the  opening  of  the  defence, 

1  Bouix,  de  Jud.,  vol.  ii.,  p.  222.  "  Pellegr.,  Part,  iv.,  Sect,  x,  n.  72.- 

3  Bouix,  de  Jud.,  vol.  ii.,  pp.  570,  578. 

4  For  the  formula  of  this  outline,  see  our  Elements,  vol.  ii.,  n.    1130,   and  also 
Bouix,  de  Jud.,  vol.  ii. ,  p.  579,  or  also  Pellegrinus,  p.  411. 


158  The  Defence — Close  of  the  Trial. 

the  accused  or  his  advocate  should  produce  his  witnesses, 
one  by  one,  and  also  all  other  evidence  by  which  he  wishes 
to  establish  his  innocence.  The  witnesses  are  examined  in 
the  manner  already  described,  and  also  explained  in  our 
Elements,  1.  c.,  nos.  1132-1133.  After  the  accused  has  pro- 
duced all  his  witnesses  and  other  means  of  defence, *  he  can 
also  hand  in  a  complete  written  defence,  covering  the  entire 
case.  *  He  can,  if  he  wishes,  obtain  a  suitable  delay  to  enable 
him  to  prepare  this  written  defence  with  great  care.3 

380.  To  all  this  evidence  submitted  by  the  defence,  the 
diocesan  prosecutor  can  reply — i.e.,  submit  rebutting  testi- 
mony :  and  consequently  he  can   produce  new    witnesses, 
documents,  etc.,  in  order  to  rebut  the  defence  of  the  ac- 
cused.4    These  new  proofs  must  be  communicated  to  the 
accused,    who  can,   in   turn,  answer,  and  produce  further 
evidence  or  witnesses,  etc.     The  last  presentation  of  proofs 
is  alway  made  by  the  accused.5     If  the  parties — i.e.,  the  prose- 
cution and   the  defence — desire   it,   they  must  be  given  a 
suitable  delay    to   enable  them  to   produce   this  rebutting 
evidence.     This  delay  is  called  terminus  ad  dicenduin  contra 
producta,  as  we  shall  presently  see.     See  our  Elements,  Vol. 
II.,  n.  1133-1141. 

381.  Finally,  when  the  accused  or  his  advocate  has  ex- 
hausted all  the  means  of  the  defence  at  his  command,  and 
moreover  expressly  declares  that  he  has -no  further  defence 
to   make,  the   auditor  or    judge  closes  the  case  (conclusio 
in  causa),  as  we  shall  explain  in  our  next  article.     After  the 
close  of  the  case,  the  accused  can  produce  any  new  or  ad- 
ditional evidence  he  may  possess,6  although  the  prosecutor 
cannot,  as  we  shall  see.1     After  the  auditor  has  closed  the 

1  Instr.,  art.  xxvii.  2  Ib.,  art.  xxvii.  3  Ib.,  art.   xxviii. 

4  Cf.  Schmalzg.,  1.  2,  t.  20,  n.  122,  sq. 

5  Bouix,  de  Jud.,  vol.  ii.,  pp.  583,  584;  R.  de  M.  Instit,  vol.  ii.;  p.  498. 

6  Pellegr.,  Part,  iv.,  Sect,  xiii.,  n.  I. 

7  Ib.,  Sect,  xii.,  n.  2;  Instit.,  R.  de  M.,  vol.  ii.,  p.  498. 


The  Defence — Close  of  the  Trial.  159 

case  and  made  a  synopsis  of  it,  the  publicatio  totius  proccssus 
turn  offcnsivi  ct  defcnsivi  takes  place  as  enacted  in  articles 
xxxii.  and  xxxiii.  of  the  Instruction  :  in  other  words,  all  the 
acts  of  the  case,  and  the  entire  evidence,  both  of  the  prose- 
cution and  of  the  defence,  together  with  the  resume  of  the 
auditor  or  judge,  is  communicated  to  the  parties,  or  rather 
submitted  to  the  inspection  of  both  parties,  namely,  the 
diocesan  prosecutor  and  the  accused  or  his  advocate,  to  en- 
able them  to  prepare  for  the  summing  up  of  the  case,  as 
we  shall  explain  below,  under  articles  xxxii.  and  xxxiii. 

ART.  XXVIII. 
Delays  Given  During  the  Trial. 

XXVIII.  "  Potest  etiam,  si  postulet,  obtinere  ut  terminus  ad  defensionem 
scripto  exhibendam  praefigatur:  maxime  si  ob  ea-quae  art.  xxviii.  indicata 
sunt,  responsionem  ad  accusationes  contra  se  latas  parare  non  potuerit." 

382.  We  have  just  seen  that  according  to  article  xxvii.  of 
the  Instruction,  the  accused  can  obtain  a  suitable  term  or 
delay  (terminus,  dilatid)  to  enable  him  to  prepare  his  written 
defence.  Here,  then,  it  is  proper  to  say  a  few  words  respect- 
ing the  various  delays  which  must  be  granted  in  trials,  also 
according  to  the  present  Instruction.  According  to  all  can- 
onists, there  are  four  necessary  or  substantial  delays,1  namely  : 
first,  the  term  assigned  to  the  diocesan  prosecutor  to  frame 
his  specifications  or  various  counts  of  the  crime  (terminus  ad 
articulandum  or  capitulanduni) ;  second,  the  term  or  delay 
given  to  the  accused,  to  prepare  and  make  categorical  an- 
swers to  the  above  specifications  (terminus  ad  dicendum  con- 
tra articulos  or  capitula) ;  third,  the  delay  assigned  to  the 
prosecutor  to  prove  the  charges  and  specifications,  and 
therefore  to  produce  all  his  witnesses  and  other  proofs,  and 
likewise  the  delay  given  to  the  accused  to  produce  counter- 

1  Pellegr.,  1.  c.,  p.  117,  n.  31,  32. 


160  The  Defence — Close  of  the  Trial. 

proofs,  such  as  witnesses,  documents,  and  consequently  to 
make  his  defence.  This  third  delay,  whether  given  to  the 
prosecutor  or  the  defence,  is  equally  called  terminus  ad  pro- 
ducendum  omnia,  because  both  parties  are  required  to  pro- 
duce all  their  proofs — i.e.,  witnesses,  documents,  etc.,  within 
the  term  respectively  assigned  them.  The  fourth  term  is 
called  terminus  ad  dicendum  contra  producta,  and  is  that  which 
is  assigned  both  to  the  prosecution  and  the  defence,  in  order 
to  overthrow  the  proofs  submitted  by  the  adversary  in  the 
third  term. 

383.  These  terms  are   called  substantial  (termini  substan- 
tiates]^ because  they  must  be  granted  on  pain  of  nullity  of  the 
icJiolc  trial,  in  all  criminal  and  disciplinary  trials,  even  though 
conducted   modo  summario?  and  consequently  also   in  our 
trials,  as  is   expressly  taught  by  Rota,2  the  Acta  S.   Sedis 3 
and  Pierantonelli,4  in  their  commentaries  on  the  Instruction 
S.C.  EE.  et.  RR.  of  1880.     Therefore,  the  auditor  or  judge, 
also  with  us,  has  no  power  whatever  to  refuse  to  grant  these 
terms  or  delays.     Nevertheless  he  has  power  to  shorten  or 
lengthen  them  ;  to  give  the  third  and  fourth  successively  in- 
stead of  simultaneously  to  both  parties ;  that  is,  to  assign  first 
a  term  for  the  diocesan  prosecutor  to  produce  his  proofs,  etc., 
and  then  a  later   term  to  the  defence,  instead  of  assigning 
the  same  term  to  both.8     In  other  words,  each  of  these  two 
terms  may  run  either  simultaneously  or  consecutively  for 
both   parties.      For,  so  far  as  concerns  the  length  of  the 
terms,  or  their  succession,  etc.,  a  great  deal  depends  upon 
the  prudent  discretion  of  the  judge  or  auditor,  and  the  mu- 
tual agreement  of  the  prosecutor  and  defendant.6 

384.  It  will  be  seen  that  the  first  and   second  terms  refer 
to  the  litis  contestatio ;  the  third  and  fourth  to  the   proofs  of 
the  prosecution  and  the  counter-proofs  of  the  defence.7    This 

1  Clem.  Snepe  2  de  V.  S.         2  P.  476.         3  Vol.  xv.,  p.  393,  sq.         4  P.  140,  sq. 

•'1  Arg.  Clem.  Soepea,  de  V.  S.  ;  Pellegr.,  1.  c.,  p.  119,  n.  3. 

*  Pierantonelli,  p.  144;    Rota,  1.  c.,  p.  476.  7  Pierait.,  Ib.,  p.    145. 


The  Defence —  Close  of  the  Trial.  1 6 1 

order  of  terms,  however,  is  not  to  be  understood  in  the  sense 
that  the  proofs  of  exceptions  which  either  quash  the  charge 
of  the  diocesan  prosecutor  altogether,  or  at  least  transfer 
the  case  to  some  other  time,  place  or  judge,  or  that  those 
proofs  which  decide  the  case  forthwith  and  without  any 
further  proceedings,  are  not  to  be  produced  in  the  very  be- 
ginning of  the  trial,  or  at  whatever  time  they  may  be  ready 
for  production.1  For  fuller  information  regarding  judicial 
delays,  see  our  Elements,  Vol.  II.,  Nos.  1078,  1093. 

ART.  XXIX. 
Close  of  the   Trial  and  Resume  of  the  A  uditor. 

XXIX.  "  Absolute  processu  redactor  actorura  summarium  pracipuorum 
argumentorum,  quae  ex  ipso  elucent,  conficiat." 

385.  When  the  trial  is  over  (absoluto proc essu),  that  is,  when 
the  accused,  having  been  fully  and  freely  allowed  to  produce 
all  his  witnesses,  documents  and  other  proofs,  declares  that 
he  has  no  further  testimony  or  evidence  to  offer  in  his  own 
behalf,  and    when,   moreover,   the  auditor  or  investigating 
judge  himself  is  of  opinion  that  the  trial  is  complete  and 
that  no  further  investigation  is  needed,  he  closes  the  case  or 
trial,  and  proceeds  to  make  a  synopsis  (summarium)  of  the 
principal  arguments,  witnesses,  documents  and  other  proofs 
submitted  on  both  sides  during  the  trial.2 

386.  Here  we  deem  it  proper  to  make  two  remarks  :    The 
first  is  that  the  closing  of  the  case  or  trial  (Conclusio  in  causa] 
by  the  auditor  is  not  taken  as  a  conclusio  in  causa  in  the  pro- 
per and  strict  sense  of  the  word.     For  by  the  closing  of  a 
cause,  strictly  speaking,  is  meant  the  act  of  both  the  con, 
tending  parties  declaring  that  they  have  no  further  testimony 
to  submit  in  the  case,  and  thus  giving  up  their  right  to  pro- 
duce any  more  evidence,   exceptions  or  defences.3     Conse- 

1  Piernntonelli,  p.    143.  -  Droste.  p.  123. 

3  Arg.  cap.  cum  dilectus;  Pellegr.,  Part.ii.,  Sect,  ii.,  subs,  xii.,   n.  3. 


1 62  The  Defence — Close  of  the  Trial. 

quently  the  effect  of  such  a  closing  of  a  case  is  that,  as  a 
rule,  no  further  testimony  whatever  can  be  produced,  either 
by  the  plaintiff  or  the  defendant.1 

387.  Now  the  closing  of  a  case  in  this   strict    sense  can 
take  place  only  in  civil  causes  falling  under  the  ecclesiastical 
forum,  but  not  in  criminal  and  disciplinary  causes.   For,  as  we 
have  seen,  in  criminal  and  disciplinary   causes,  the  accused 
has   the  right  to  produce  and  submit  additional  witnesses 
and  proofs  at   any   time,  before  the  final   sentence  is   pro- 
nounced, nay,  even  after  it  has  been  pronounced, 2  and  that 
(a)  either  for  the  purpose  of  weakening  or  overthrowing  the 
evidence  adduced  by  the  prosecutor,  during  the  trial ;  (b) 
or  of  establishing  new  points  (articuli  novi,  capitula  nova)  show- 
ing his  innocence. 

388.  We  say  first,  for  the  purpose  of  weakening,  etc.     Thus 
where,  for  instance,  the  names  of  the  witnesses  are  communi- 
cated to  the  accused  or  his  advocate,  only  at  the  publicatio 
processus,  as  prescribed  in  article  xxxii.  of  the  Instruction?  the 
accused  or  his  advocate  has  the  fullest  right  to  produce,  even 
at  this  stage  of  the  proceedings,  new  witnesses  and  evidence 
to  show  the  witnesses  of  the  prosecution  are  perjurers,  liars 
possessed  of  a  bad  reputation,  or  are  enemies  of  the  accused, 
or  in  some  other  way  disqualified. 

389.  We  say  secondly,  "  or  of  establishing  new  points  ;  "  for 
the  accused  has  the  right,  after  the    close  of  the  trial,  to 
produce  any  new  testimony  he  may  possess,  in  proof  of  his 
innocence.     The   prosecution,   however,    cannot,  after  the 
close  of  the  trial,4  produce  any  additional  witnesses  or  proofs 
against  the  accused,5  save  for  the  purpose  of  answering  the 
new  witnesses  or  proofs  adduced  by  the  defendant,  after  the 


1  Our  Elements,  vol.  ii.,  n.    1348. 

2  Pellegr.,  1.  c.,  n.  7 ;  Bouix,  de  Jud.,  vol.  ii.,  p.  223,  n.  7. 

3  Cf.  Cone.  PI.  Bait,  iii.,  n.  143.  «  Instr.,  a-t.  xxix. 
5  Arg.  Cap.  6.  de  prob.  (ii.  19) ;  Cap.  17  de  te»t.  (ii.  20). 


The  Defence — Close  of  the  Trial.  163 

close  of  the  trial,  to  establish  new  points  in  support  of  his 
innocence.1  This  principle  of  law  was  clearly  brought  out 
in  the  oft-quoted  famous  case  of  the  Rev.  David  A.  of  Milan, 
decided  by  the  S.  C.  C.  on  April  18,  1885.  This  Sacred  Con- 
gregation, to  which  David  had  appealed,  reversed  the  sen- 
tence of  the  curia  of  Milan,  by  resolution  dated  Dec.  20, 
1884.  Thereupon  the  prosecutor  of  the  Diocese  of  Milan 
asked  the  Sacred  Congregation  for  a  new  hearing  on  the 
ground  that  he  could  and  would  produce  additional  wit- 
nesses to  prove  David's  crime. 

390.  The  Roman  advocate  of  David  opposed  the  new 
hearing  on  several  grounds,  and  among  others,  on  the  ground 
that  after  a  criminal  and  disciplinary   case  is  closed  (post 
conclnsionem  in  causa)  the  prosecutor  cannot  produce  any  ad- 
ditional witnesses  or  proofs,  though  the  accused  can.     For 
if  the  case  were  different,  the  prosecution  would  easily  be 
turned    into  a  persecution.     The  Sacred    Congregation  de- 
cided, on  the  1 8th  of  April,  1885,  in  favor  of  the  accused,  and 
thus,  according  to  the  Acta  S.  Sedis,  confirmed  the  above 
principle  and  applied  it  to  trials  conducted  according  to  the 
Instructions  of  1880  and  1884.* 

391.  Our  second  observation  refers  to  the  nature  and  con- 
tents of  the  auditor's  resume.     This  synopsis  should  first 
state  briefly,  though  clearly,   all  the  steps  or  judicial  pro- 
ceedings that  have  taken  place,  such  as  the  processus  informa- 
tions, the  citation,  repetition  of  witnesses,  etc.,  in  order  that 
it  may  appear,  so  to  say,  at  a  glance,  that  the  prescribed  judi- 
cial formalities  were  observed.'     Next,  it  should  briefly  give 
or   review  the  evidence,   both   of  the  diocesan  prosecutor 
and  of  the  accused,  in  this  manner  :  first  the  auditor  reviews 
the  proofs  submitted   by  the  prosecutor,  and  states  what 
conclusions  would  seem  legally  to  follow  from  them.     Then 


1  Pellegr.,  Part.iv.,  Sect,  xii.,  n.  2.         •  Acta  S.  Sedis,  vol.  xviii.,  p.  72. 
3  Pellegr.,  1.  c. ,  Part.ii.,  Sect,  ii.,    subs.  14,  n.  I,  sq. 


164  The  Defence — Close  of  the  Trial. 

he  likewise  goes  over  the  testimony  produced  by  the  de- 
fence and  shows  whether  and  how  far,  according  to  law,  it 
breaks  down  the  prosecution's  evidence. 

392.  We  say.  what  conchisions  seem  legally  to  follow  ;  for  the 
auditor  should  not  give  his  own  personal   opinion   for  or 
against  the  accused.     He  should  merely  state,  and  that  with 
the    utmost    impartiality,    the    legal    conclusions, — or    the 
conclusions  warranted  by  law — which  appear  to  follow,  on 
the  one  hand,  from  the  proofs  submitted  by  the  prosecution, 
and  on  the  other,  from  those  produced  by  the  defence.     He 
should,  therefore,  give  the  same  impartial  consideration   to 
the  proofs  of  the  defence  as  he  gives  to  those  of  the  prose- 
cution. 

393.  Thus  it  will  be  seen  that  our  sunimarium  resembles 
.  the  rcstrictus juris  et  facti  always  made  out  by  the  secretary 

of  the  respective  sacred  congregations  in  Rome  or  by  an 
auditor  appointed  to  take  evidence,  prior  to  the  day  fixed 
for  the  decision  of  the  case.  For,  whenever  a  case  is  to  be 
decided  by  any  of  the  sacred  congregations,  it  is  the  custom 
of  such  congregation  to  have  the  evidence  in  the  case  tak- 
en and  a  synopis  or  restrictus  of  it  drawn  up,  either  by  its 
respective  secretary  or  by  some  other  official,  usually  called 
judex  relator.  This  document  is  printed  and  distributed 
among  the  Cardinals  composing  the  congregation,  eight 
days  before  the  general  meeting  takes  place  in  which  the 
case  is  to  be  decided.1  This  restrictus,  like  our  sunimarium. 
should  merely  state  the  facts  and  proofs  as  presented  by 
both  litigants  and  the  legal  deductions  flowing  from  them, 
but  not  the  personal  views  of  \hejudcx  relator  or  secretary. 
It  will  also  be  seen  that  the  sunimarium  resembles  the  opin- 
ion or  the  verdict  given  by  the  commission  of  investigation 
according  to  no.  9  of  the  Instruction  of  1878. 

;   Bar. gen,  The  Roman  Curia,  1.  c.,  169. 


CHAPTER  V. 

THE   SUMMING   UP,  AND   THE   FINAL   SENTENCE. 

(FROM  ART.   xxx.  TO  ART.  xxxvi.) 

ART.   XXX. 

The  Defendant's  Advocate — Appointment,  Rights  and  Duties. 

XXX.  "  Qua  die  causa  proponetur,  inquisito  fiet  facultas  defensionem 
suam  per  alium  sacerdotem  suo  nomine  in  scriptis  exhibendi.  Quod  si 
idoneum  non  reperiat,  laicum  Catholicum  adhibere  potest.  Quisque  au- 
tem  ex  iis  ab  Ordinario  approbandus  est." 

394.  In  the  preceding  articles,  the   Instruction  gives  the 
manner  in  which  the  trial  is  conducted  from  its  beginning  to 
its  end,  so  far  as  the  taking  of  evidence  on  both  sides  is  con- 
cerned.    In  the  present  and  five  succeeding  articles,  it  treats 
of  the  final  sentence,  which  is  pronounced  at  the  end  of  the 
trial.     As  we  have  already  seen  under  article  xii.,  the  trial, 
or  compilatio  processus,  as  described  thus  far,  is  usually   con- 
ducted by  one  person — namely  the  auditor,  while  the  sen- 
tence itself   or  final  decision  is  given  by  another,  namely 
the  Bishop  or  his  Vicar-general. 

395.  Lest  the   Bishop    or    Vicar-general  should  fall    into 
the  danger  of  acting  without  mature  consideration  and  full 
information,    in   a  matter  fraught  with  such  grave  conse- 
quences for  the  accused,  he  is  obliged,  before  proceeding  to 
pass  the  final  sentence,  to  notify  and  cite  both  the  prosecu- 
tor and  the  accused  or  his  advocate  to  make  their  final  ar- 
guments or  summing  up  in  the  case  (inonitio  or  citatio  ad  al- 
legandum  injure  et  in  facto),  and  thus  to  inform   him  finally 
and    fully  of  the  case.     This  right  of  making  the  final  sum- 


1 66        The  Summing  Up,  and  the  Final  Sentence. 

ming  up,  prior  to  the  passing  of  sentence,  is,  so  far  as  the 
accused  is  concerned,  jure  divino  ct  naturali.  For  it  is  plain- 
ly a  material  part  of  a  just  defence,  as  will  be  seen  better  a 
little  further  on.  Hence  the  accused  must,  on  pain  of  nul- 
lity of  the  proceedings,  be  cited  to  make  this  final  argument 
and  given  a  proper  term  or  delay  to  prepare  it.1 

396.  Consequently  this  right  is  also  guaranteed  by  the 
present  Instruct™,  in  articles  xxx.  to  xxxiv.      Hence,  after 
the  case  has  been  closed  in  the  manner  explained  under  the 
foregoing    article,  a   suitable  term  or  delay  is  assigned  to 
the  prosecutor  and  the  defence,  by  the  Bishop  or  Vicar- 
general  (not  by  the  auditor,  since  his  duties  end  as  soon  as 
he  has  given  in  his  synopsis),  within  which  they   may  pre- 
pare and  present  their  summing  up    of  the    whole    case. 
The  manner  in  which  this  final  pleading  must  be  made,  will 
be  described  below  under  articles  xxxii.,  xxxiii. 

397.  The  present   article  says  that  the  accused  has   the 
right  to  make  this  final  summing  up — which  the  Instructio 
justly  calls  defensionem  suam,  for  it  is,  as  we  have  observed, 
a  material  part  of  a  just  defence — through  an  advocate,  who 
is  a  priest,  or  in  default  of  a  learned  priest,  through  a  Cath- 
olic layman.      The  words  of  the  Instructio  are  :    "  Inquisito 
fiet  facultas  defensionem  suam  per  alium  sacerdotem  exhiben- 
di.     Quod  si  idoneum  non  reperiat,  laicum  Catholicum  adhibercpo- 
test"  *     Herein  the  Instruction  Cum  Magnopere  differs  some- 
what from  the  Instructio  of  the  S.  C.  EE.  et  RR.,    dated 
June  n,   1880.      The  latter  allows  the  accused  liberty   to 

1  Pellegr.,  Part,  iv.,  Sect,  xv.,  n.  2. 

•  Art.  xxx.;  Cf.  Cone.  PI.  Bait,  iii.,  p.  291.  At  the  conferences  held  at  Rome  in  1883, 
some  of  our  Prelates  requested  that  lay  advocates  should  be  excluded,  and  also  that 
no  otal  summing  up  should  be  permitted.  The  Cardinals  replied  to  the  first  request 
that  the  right  of  defence  was  already  restricted  in  part,  by  the  fact  that  the  Tnstrue- 
tio  provides  that  the  advocate  shall  be  approved  by  the  Bishop  :  to  the  second,  that 
only  a  written  summing  up  should  be  allowed,  and  that  consequently  the  Instnutio, 
which  in  its  first  draft  admitted  of  an  oral  summing  up,  should  be  modified  so  as  to 
permit  only  a  written  summing  up. 


The  Summing  Up,  and  the  Final  Sentence.      167 

choose  equally  either  a  priest  or  a  layman  for  his  advocate. 
Thus  it  says  in  art.  xxx.  :  "  Est  in  facultate  accusati  faciendi 
se  repraesentare  et  defendere  ab  alio  sacerdote  aut  laico  pa- 
trocinatore."  The  Instruction  Cum  Magnoperc  restricts  this 
liberty  of  choice  in  such  a  manner,  that  the  accused  can 
select  a  Catholic  layman  for  his  advocate,  only  when  he 
does  not  find  a  competent  priest,  who  will  act  as  his  advocate. 

398.  However,  the   TJiird  Plenary  Council  of  Baltimore,  n. 
302,  by  express  authorization  of  the  Holy  See,  interprets 
article  xxx.  of  the  Instrnctio  in  this  sense :     "  Defensorem, 
qui  semper  sit  i'ir  ccclesiasticns,   ut  S.  Congregatio,  petenti- 
bus  Episcopis,  expresse  declaravit,  sibi   eligendi   accusato 
jus  est."     The  Third  Plenary  Council,  n.  302,  adds:  "  Judex 
tamen  electum  (defensorem)  ex  just  a  causa  recusare,  et  alteri- 
us  a  se  approbandi  substitutionem  exigere  potest."     For  the 
just  causes  which  authorize  the  Bishop  to  reject  the  advo- 
cate selected  by  the  accused,  see  our  Elements,  Vol.  II.,  n. 
769. 

399.  Here,  then,  it  may  be  asked  :  Is  the  accused  allowed 
to  be  assisted  by  an  advocate,  not  merely  at  the  final  sum- 
ming up,  but  also  during  the  trial  which  precedes   the  final 
summing  up?     The  reason  of  the  question  is  that  the  In- 
strnctio,  by  expressly  allowing  the  accused  to  have  an  ad- 
vocate for  the  summing  up,  would  appear  tacitly  to  exclude 
him  at  all  the  other  proceedings.     However,  a  closer  exam- 
ination   of  the  present  article  (xxx.)  of  the   Instructio   will 
show  that  this  inference  is  incorrect.     For,  what  does  the 
article  say  ?     "  Qua  die  causa  proponetur,  inquisito  net  fac- 
ultas  defensionem  suam  per  alium  sacerdotem  suo  nomine  in 
scriptis    exhibendi,"    which    translated,    means :     The    ac- 
cused has  the  right  to  make  his  summing  up  or  final  defence 
through  an  advocate.     In  other  words,  he  can   be  replaced, 
not  merely  assisted  by  his  advocate,  in  the  summing  up  and 
final  sentence.     Hence  the  accused  can  appear  and  act   by 
proxy  and  need  not  appear  in  person,  at  this  stage  of  the  pro- 


1 68       The  Summing  Up,  and  the  Final  Sentence. 

ceedings.  Thus  the  Third  Plenary  Council  of  Baltimore  (n. 
315),  commenting  on  this  article,  justly  says:  "  Reus  igitur 
ipse  comparere  non  tenetur,  sed  potest."  His  counsel  ap- 
pears and  acts  for  him.  Consequently  the  advocate  himself 
and  not  the  accused  signs  the  written  summing  up. 

400.  From  this  it  follows  indeed  by  the  argument  a  scnsu 
contrario?  that  in  the  trial  which  is  outlined  in  articles  xxv. 
to  xxix.   of  the  Instructio  and  which  precedes  the  final  sum- 
ming up,  the  accused  cannot,  as  a  rule,  be  absent  and  appear 
•merely  by  his  advocate,  but  that  he  must  appear  /;/  person  ; 
that  therefore  he  must  obey   the  citation  in  person,   that  in 
the  examination  and  subsequent  litis  contcstatio,  he  must  an- 
swer in  person  ;  that  he  must  sign  the  written  defence,  which 
he  makes  in  accordance  with  articles  xxvii.  and  xxviii.,  in 
person ;    in  a  word,  that   in   all   the   acts   and    proceedings 
which    make  up  the  compilatio  processus  or  taking  of  evi- 
dence, he  cannot  be  absent,  and  appear,  answer  or  act,  mere- 
ly by  proxy,  but  that  he  must  be  present  and  answer  in  per- 
son. 

401.  But  it  does  not  follow  that  the  accused,  while  obliged 
to  appear  in  person  during  the  trial,  cannot  be  accompanied 
and  assisted  by  an  advocate.     For  according  to  the  rules  of 
interpretation,  given  by  canonists,  the    Instructio  must    be 
interpreted  according  to  the  general  law  of  the  Church,  ex- 
cept where  the  contrary  is  expressly  stated.     This  holds  es- 
pecially in  so  odious  a  matter  as  the  restricting  of  the  right 
of  defence. 

Now  the  law  of  the  Church  clearly  distinguishes  between 
the  right  of  the  accused  to  be  assisted,  when  present  in  court, 
and  that  of  being  represented  when  absent.  And  while  it 
authorizes  the  ecclesiastical  judge  to  refuse,  in  certain  causes 
or  at  certain  stages  of  the  trial,  to  allow  the  accused  to  be 
absent  and  to  appear  merely  by  proxy,  or  by  his  advocate, 

1  Reiff.,  1.  c.,  t.  2,  n.  406. 


The  Summing  Up,  and  the  Final  Sentence.       1 69 

it  always  requires  him  to  permit  the  accused,  when  he  ap- 
pears in  person,  to  be  accompanied  and  assisted  by  an  ad- 
vocate, and  that  during  the  entire  trial,  that  is,  from  the  ci- 
tation of  the  accused  to  the  final  sentence.  See  our  Elements, 
Vol.  II.,  Nos.  754,  755,  757,  761,  774. 

402.  This  principle   of  law  was  fully   confirmed   and   ap- 
plied to  our  country,  by  the  S.  C.  de  Prop.  Fide,  in  its  answer 
ad  Dnbia  respecting-  the  Instruction  of  July  20,  1878.     See 
our  Elements,  Vol.  II.,  p.  424. 

403.  Consequently,  it  is  certain,  that  whether  the  Instruc- 
tion of  1878  is  still   in  force  by  Papal   dispensation,  the  ac- 
cused can  be  accompanied   and   assisted  by  an   advocate, 
during  the  entire  trial,  and  also  represented  or  replaced  by 
him  in  the  final  summing  up.1     Wherefore,  if  this  right  were 
curtailed  in  the  present  Instruction,  it  would  have  to  be  said 
that  in  the  larger  dioceses  where  the  present  Instruction  ob- 
tains, the  status  of  the  defendant  would  be  worse  than  in 
the  smaller  and  less  favored  dioceses,  where  the  Instruction 
of  1878  is  still  in  force. 

404.  Again,  as  we  have  shown,  one  of  the  aims  of  the 
present  Instruction  is  to  provide  a  means,  which   would  be 
adequate  in  every  respect,  to  stop  complaints  of    defend- 
ants.    Thus  the  Instruction  says :  "  Cum  magnopere  hujus 
S.  Concilii  intersit  in  ecclesiasticis  judiciis  earn  methodum 
servari,  quae.  .  .  .  quaerelisque  reorum  praecavendis  par  om- 
nino  sit."     But,  would  not  the  accused  have  a  just  cause  of 
complaint,  if  he  were  denied  the  right  to  be  accompanied 
and  assisted  by  an  advocate,  not  merely  at  the  final  sum- 
ming up,  but  also  during  the  whole  trial  ?     Finally,  the  In- 
struction nowhere  expressly  takes  away  this  right,  but  seems 
rather  to  grant  it  in  article  xxvii.  when  it  says :  "  Inquisitus 
ubi    ex    his  noverit  .  .  .  ad  ea    respondcrc  potest,    ac,  si  ve- 
lit."  .  .  .     For,  according  to  canonists,  the  terms  respondere 

1  Cf.  Instr.  Cum  Magnopere,  art.  xii. 


1 70       The  Summing  Up,  and  the  Final  Sentence. 

potest  mean  the  entire  right  of  defence.  Now  all  canonists 
maintain  that  this  right  essentially  includes  the  right  to  be 
assisted  by  an  advocate. 

405.  Hence    the  unanimous    teaching  of  canonists   that 
the  accused  can  be  accompanied  and  assisted  by  an  advo- 
cate from  the  very  beginning  of  the  trial  to  its  end,1  does 
not  appear  to  be  curtailed  by  the  Instruct™. 

A  learned  theologian,  however,  whom  we  have  consulted, 
thinks  differently,  and  holds  that  no  advocate  need  be  ad- 
mitted, even  to  assist  the  accused,  until  the  summing  up  of 
the  case,  which  takes  place  according  to  articles  xxx.,  xxxiv. 
of  the  Instruction. 

406.  These  principles  are  set  forth  with  remarkable  clear- 
ness in  the  Instruction  for  the  arch-diocese  of  Prague,  1869, 
on  the  mode  of  procedure  in  ecclesiastical  trials.2     Thus, 
article  xvii.  of  this  Instruction  says  :  "  The  parties  (namely, 
the  plaintiff  and  the  defendant)  have  the  right  to  make  use 
of  and  be  assisted  by  an  advocate  learned  in  the  law,  during 
the  trial,  to  consult  with  him,  to  have  the  requisite  papers 
or  documents  made  out  by  him,  and  to  be  accompanied  by 
him,  during  the  trial  or  the  hearing  of  the  cause.     Yet  all  the 
papers  handed  in  by  a  party  (v.g.,  by  the  accused)  must  be 
signed  by  such  party  himself ;  and  the  latter  must  also  give 
his  answers  in  person  ;  and  no   regard  shall  be  paid  to  an- 
swers made  by  the  advocate.     Nevertheless,  the  party  can 
always  consult  with  his  advocate,  before  giving  an  answer. 
Should  the  advocate  act  obstreperously  so  as  to  disturb  the 
proceedings,  the  investigating  judge  (i.e.,  the  auditor  con- 
ducting the  compilatio  processus)  can  cause  him  to  be  excluded 
from  the  proceedings." 

407.  The  other  principle,  to  wit,  that  a  party  cannot  ap- 

1  Cf.  Bouix,  de  Jud.,  vol.  ii.,  p.  570. 

2  This  Instruction  bears  a  striking  resemblance  both  to  the  Instruction  S.  C.  EE.et 
RR.,  June  u,  1880,  and  to  the  Instr.  Cum  Magnopere,  and  appears  to  have  served 
as  a  model  for  them. 


The  Summing  Up,  and  the  Final  Sentence.       171 

pear  by  proxy  at  the  trial  is  thus  enunciated  in  this  Instruc- 
tion, art.  xviii. :  "  That  a  party  (the  accused)  may  be  repre- 
sented by  a  procurator  or  an  advocate,  without  appearing 
personally  in  court  .  .  .  can  be  allowed  by  the  court,  only  for 
grave  reasons."  1  See  also  article  Ixvi.  of  the  same  Instruc- 
tion,2 where  the  above  rules  are  expressly  applied  to  the  ad- 
vocates of  the  accused,  in  criminal  proceedings. 

ART.  XXXI. 

IVJicn  is  the  Judge  Bound  ex  officio  to  Appoint  an  Advocate 
for  the  Accused? 

XXXI.  "  Si  vero  reus  defensorem  deputare  recuset,  Ordinarius  ilium  ex 
officio  designabit." 

408.  The  accused  can,  as  we  have  seen,  select  as  his  ad- 
vocate any  worthy  and  learned  ecclesiastic,  either  of  the 
same  or  of  a  different  diocese.     The  nomination  is  subject 
to  the  Bishop's  approval.     Where,  however,  the  accused  de- 
clines to  choose  an  advocate,  either  because  he  considers 
himself  capable  of  conducting  his  own  defence,  or  because 
he   does   not   regard   the  case  of  sufficient  importance,  or 
looks  upon  the  defence  as  useless,  or  is  too  poor  to  pay  an 
advocate,  the  court  will  appoint  one  ex  officio?  as  the  pre- 
sent article  directs. 

409.  This  enactment  is  in  full  accord  with  the  common 
law   of   the   Church.     Thus   the   Roman   or   civil   law,   as 
adopted  by  the  Church,  enacts :    "  Si  (partes)  non  habebunt 
advocatum,  ego    (Prastor,  Judex)  dabo."4     The  reason  of 
this  law  is,  as  we   have   seen,  that  the  judge  is  bound  ex 
officio  to  do  all  in  his  power  to  procure  a  full  defence  for  the 
accused,  and   therefore,  also   to   assign   him   an   advocate, 
when  he  himself  fails  to  select  one,  and  is  careless  in  the 


1  Apud  Droste,  p.  170.  2  Ib.,  p.  179.  3  Cf.  Droste,  p.   125. 

4  I..   I,  §  4,  ff.  de  Postal.;  Cf.  Perezii  Prael.,  in  1.  2,  Cod.  t.  7,  de  advoc.  n.  6. 


1 72       The  Summing  Up,  and  the  Final  Sentence. 

management  of  his  defence.  In  regard  to  the  Bishop's  ap- 
proval of  the  advocate  chosen  by  the  accused,  see  our  Ele- 
ments, Vol.  II.,  n.  769.  For  fuller  information  concerning 
the  rights  and  duties  of  advocates,  see  our  Elements,  1.  c.,  Nos. 
766-781. 

ART.  XXXII. 

Rights  and  Duties  of  the  Defendant's  Advocate,  in   the   Sum- 
ming up  of  the  Case. 

XXXII.  "  Defensor  debitis  sub  cautelis  in  cancellaria  curise  processum 
ejusque  summarium  inspiciet,  ut  reum  tueatur :  ac  defensionem  ante 
causae  ipsius  propositionem  scripto  exhibebit.  Ipse  quoque  ad  juramen- 
tum  de  secreto  servando  tenetur,  quando  judex  indolem  causae  id  postu- 
late censuerit." 

410.  This  article  describes  the  duties  of  the  defendant's 
advocate  in  relation  to  the  summing  up  of  the  case  for  the 
accused,  or  the  allegare  in  jure  et  in  facto.  Moreover,  the 
present  and  succeeding  articles  define  the  manner  in  which 
these  final  arguments  are  to  be  made.  According  to  the 
general  law  and  the  universal  practice  of  ecclesiastical 
courts,  the  two  parties,  that  is,  the  prosecution  and  the  de- 
fence, have  a  right  to  make  their  summing  up,  botJi  orally  and 
in  writing.  This  appears  also  from  the  wording  of  the  for- 
mula by  which  the  ecclesiastical  judge  cites  the  parties  to 
make  the  summing  up.  The  formula  reads  thus:  Rmus 
Dominus  V.  G.  monuit  ambas  partes  ad  deducendum 
quidquid  volunt  et  possunt,  tarn  verbo  quam  scriptis,  et  tarn  in 
jure  quam  in  facto.  .  ." 1  Thus  also  the  Instruction  of  the 
S.  C.  EE.  et  RR.,  of  June  n,  1880,  expressly  gives  the  ad- 
vocate of  the  accused  the  right  to  make  the  summing  up  or 
final  defensive  arguments,  first  in  writing, 2  and  then  orally, 
or  by  speech  before  the  court. 3 

1  Pellegr.,  Part,  ii.,  Sect,  ii.,  subs.   13,  n.   ii;  idem,  Part. iv.,  Sect,  xv.,  n.  29. 
2  Art.  xxxii.  3  Art.   xxxv. 


The  Summing  Up,  and  the  Final  Sentence.       \  73 

411.  Originally    the   present    Instruction   for  the  United 
States,  as  presented  by  S.  C.  de  Prop.  Fide,  to  our  Prelates 
assembled  in  Rome  in  November,  1883,  was  identical,  in  this 
respect,  as  in  fact  in  all  other  respects,  with  the  Instruction 
of   1880,  and  therefore,  allowed  both  the  oral  and  written 
summing  up  for  the  defence.     But  the  oral  summing  up  was 
objected  to  by  some  of  our  Prelates,  at  these  Roman  Con- 
ferences, chiefly  on  the  ground    that  if  advocates,  lay  or 
clerical,  were  permitted  to  appear  personally  in  the  Bishop's 
court  to  make  the  final  defence  orally  or  by  speeches,  there 
would  be  danger  that  gradually  an  odious  class  of  ecclesias- 
tical advocates  would   arise   in   the     United  States  whose 
interest   it   would    be  to  multiply  litigations  and  protract 
them  "ad  indefinitum."     In  deference  to  these  objections, 
the    Holy  See   changed  articles  xxxii.,  xxxiii.,  xxxiv.,  and 
xxxv.  of  the  Instruction,  in  such  a  manner  as  to  allow  only 
of  the  written  and  not  of  the  oral  summing  up. 

412.  Accordingly  the  present  article  enacts  that  the  de- 
fendant  shall  make  his  summing  up  or  final  defensive  ar- 
guments in  writing  only,  and  that  he  shall  present  it  to  the 
judge,  before  the  day  on  which  the  sentence  is  to  be  pro- 
nounced.    For  the  purpose  of  enabling  him   to  make  this 
final  defence  cover  the  whole  cause,  the  Instruction  gives  the 
defendant's  advocate  the  right,  not  only  to  inspect  or  copy, 
at  the  diocesan  chancery,  the  whole  trial  and  the  synopsis 
of  the  auditor,  but  also  the  right  to  secure  a  copy  of  the 
final  summing  up  of  the  diocesan  prosecutor,  as  we  shall 
see  in  the  next  article. 

413.  From  this  it  will  be  seen  that  while  our  Instruction 
does  away  with  the  oral  summing  up,  it  does  not  infringe 
upon  any  material  right  of  the  accused.     For,  it  simply  en- 
acts, that  what  can  be  done  orally,  according  to  the  general 
law  of  the  Church  and  the  Instruction  of  1880,  shall  be  done 
in  writing  with  us.      Thus,  as  we  have  shown,  according  to 
the  general  law  of  the  Church  and  the  Instruction  of  1880, 


1 74       The  Summing  Up,  and  the  Final  Sentence. 

the  advocates,  besides  handing  in  a  written  summing  up, 
can  also  make  final  speeches  or  an  oral  summing  up,  and 
that  in  this  order:  first  the  prosecutor  or  his  advocate 
speaks  :  next  the  accused  or  his  advocate,  having  heard  the 
prosecutor's  speech,  addresses  the  court. *  Now,  in  the  In- 
struction for  the  United  States,  the  defendant  is  expressly 
allowed,  nay,  his  advocate  is  enjoined,  to  hand  in  a  written 
summing  up,  just  in  the  same  manner  as  provided  in  the 
general  law  of  the  Church  and  in  the  Instruction  of  1880. 
But  instead  of  the  oral  summing  up  by  the  prosecutor,  and 
the  oral  reply  or  summing  up  by  the  defendant's  advocate, 
our  Instruction  enjoins  that  the  prosecutor  shall  merely  make 
a  written  argument  and  the  defendant  a  written  reply. 

414.  Here  we  observe  that  in  this  summing  up,  as  in  the 
trial  itself,  the  accused  or  his  advocate  must  always  be  al- 
lowed  to   have   the   last  word  or   to  make  the  last  reply. 
Hence  the  Instruction  also  enjoins  that  the  written  summing 
up  of  the  prosecutor  shall  be  communicated  to  the  advocate 
of  the  accused,  in  order  to  enable  him  to  reply  and  thus   to 
have  the  last  word.     See  our  Elements,  Vol.  II.,  Nos.  1134, 
1142,  1348. 

ART.  XXXIII. 
The  Summing  up  by  the  Diocesan  Prosecutor. 

XXXIII.  "Processus  ejusque  Summarium  ad  procuratorem  fiscalem  mit- 
titur,  ut  officio  suo  fungi  possit.  Postquam  procurator  fiscalis  suas  con- 
clusiones  ediderit,  eaedem  defensori  rei  communicandae  sunt  ut  ad  easdem 
si  placuerit  in  scriptis  respondeat ;  turn  omnia  ad  Ordinarium  remittuntur 
qui,  ubi  in  plenam  causae  cognitionem  devenerit,  diem  constituet,  in  qua 
sententia  dicenda  sit." 

415.  We  have  seen  in  the  preceding  article  that  the  ac- 
cused or  his  advocate  has  full  access  to  all  the  documents  of 
the  trial  at  the  episcopal  chancery,  to  enable  him  to  prepare 

1  Cf.  Pellegr.,  1.  c.,  n.  13;  Droste,  1.  c.,  p.   126. 


The  Summing  Up,  and  the  Final  Sentence.       175 

for  the  summing  up  or  final  defence.  The  present  article 
grants  the  same  right  to  the  diocesan  prosecutor,  and  con- 
sequently ordains  that  the  whole  trial  and  the  synopsis  of 
the  auditor  or  investigating  judge  shall  be  sent  to  him,  so 
that  he  may  be  able  to  make  up  his  final  arguments  in  writ- 
ing. The  present  article  furthermore  enacts  that  the  sum- 
ming up  of  the  prosecutor  shall  be  sent  to  the  defendant's 
advocate,  so  that  the  latter  may  reply.  Finally,  when  the 
defendant's  advocate  has  handed  in  his  written  answer  to 
the  prosecutor's  final  argument,  all  the  acts  of  the  whole 
cause — namely  the  trial,  the  auditor's  summary,  the  sum- 
ming up  both  of  the  prosecution  and  the  defence,  shall  be 
remitted  to  the  Ordinary,  so  that  he  may  examine  them 
thoroughly  and  thus  be  prepared  to  pronounce  a  just  sen- 
tence. After  the  Ordinary  has  carefully  and  practically 
weighed  all  the  documents  and  thus  obtained  a  complete 
knowledge  of  the  case,  he  fixes  a  day  for  the  sentence,  no- 
tifying the  prosecutor  and  the  accused,  or  his  advocate,  to 
that  effect. 

416.  We  have  already,  in  the  foregoing  article,  explained 
all  these  steps  or  proceedings.  Here  it  remains  but  to  say 
a  few  words  respecting  the  tenor,  contents  and  form  of  the 
summing  up,  whether  of  the  prosecution  or  of  the  defence. 
The  summing  up  is  called  allegare  in  jure  et  in  facto.1  Now 
the  phrase  allegare  injure  et  'in  facto,  means  nothing  else 
than  to  show  that  the  facts  in  the  case  (allegare  in  facto),  that 
is,  the  proofs  produced  during  the  trial,  and  the  law  bearing 
on  these  facts  or  proofs  (allegare  in  jure],  fully  establish 
either  the  guilt  or  the  innocence  of  the  accused.  Of  course 
the  prosecutor's  summing  up  will  endeavor  to  prove  the 
Lcuilt  of  the  accused  ;  that  of  the  accused  his  innocence.  It 
is  therefore  the  duty  of  the  advocate  summing  up,  to  review 
the  entire  evidence  and  all  the  facts  brought  out  at  the  trial, 

1  Pellegr.,  1.  c.,  pp.  147.  436. 


1 76       The  Summing  Up>  and  the  Final  Sentence. 

and  to  show  how  the  evidence  and  facts  are  to  be  construed 
in  the  light  of  the  law,  and  how  they  show  either  the  in- 
nocence or  guilt  of  the  accused.  Above  all,  should  the 
advocate  of  the  accused  bestow  the  greatest  care  upon  the 
preparation  of  his  summing  up.  He  should  therefore  go 
over  the  whole  trial ;  carefully  analyze  all  the  evidence,  and 
endeavor  to  demonstrate  the  innocence  of  his  client. 
Hence  this  summing  up  for  the  defence  is  justly  called  by 
canonists,  the  final  defence — ultima  defensio?  and  by  the 
Instruction,  simply  dcfensio.  And  it  is  an  integral  part  of  a 
just  defence,  as  we  say  in  our  Elements,  Vol.  II.,  no.  1142. 

ART.  XXXIV. 
The   Final  Sentence. — Its  Form  and  Tenor. 

XXXIV.  "  Praestituta  die,  ab  Episcopo  vel  Vicario  general!  praesente 
procuratore  fiscal!  et  defensore  sententia  pronunciatur,  ejusque  pars  dis- 
positiva  Cancellario  dictatur,  expressa  mentione  facta,  si  damnationi  sit 
locus,  sanctionis  canonicae  quae  contra  imputatum  applicatur." 

417.  When  the  Ordinary  has  fully  weighed  the  entire  case, 
he  appoints  a  day  for  the  final  sentence  and  notifies  the 
prosecutor  and  the  accused,  or  his  advocate  to  that  effect, 
as  we  have  seen  in  the  preceding  article.     On  the  day  ap- 
pointed, he  pronounces  the  final  sentence,  in  presence  of  the 
prosecutor,  the  defendant's  advocate,  and    the    chancellor. 
Where  the  common  law  and  the  Instruction  of  1880  obtain, 
both  parties  make  their  oral  summing  up  on   the   clay  set 
apart   for   the   sentence,  and    that  immediately  before  the 
sentence  is  pronounced.     With  us,  however,  no  such  oral 
summing  up  takes  place,  as  has  been  shown.     Hence  on  the 
day  fixed  for  sentence,   the  judge  simply  pronounces  the 
sentence. 

418.  The    sentence    must    be    either    condemnatory    or 
absolutory.     Whenever   the   guilt  of  the  accused  has  not 

1  Bouix,  de  Jucl.,  1.  2,  p.  224,  586. 


The  Summing  Up,  and  the  Final  Sentence.       177 

been  juridically  preyed,  he  must  be  declared  completely 
innocent,  that  is,  he  must  be  simply  absolved,1  and  all  the 
acts  of  the  trial  must  be  entirely  destroyed.2  As  to  the 
indemnity  to  be  paid  to  the  accused  in  this  case,  we  shall 
explain  the  matter  later  on. 

419.  Where  the  sentence  is  condemnatory,  it  must  first 
state  clearly  and  explicitly  the  chief  reasons  on  which  it  is 
based  ; 3  in  other  words,  it  must  set  forth  the  particular 
crime,  or  the  specific  criminal  acts,  on  account  of  which  the 
punishment  is  inflicted  ; 4  otherwise  the  sentence  is  null  and 
void.5     Next,  it   must   expressly   give  the  sanctio  canonica, 
that  is,  the  ecclesiastical  law  or  enactment  authorizing  the 
infliction  of  the  punishment,  as  we  show  more  fully  in  the 
Third  Volume  of  our  Elements  of  Ecclesiastical  Law.6 

420.  Third,  the   judge    must   necessarily   pronounce  the 
sentence,  not  according  to  his  own  private  and  extrajudicial 
information,  but  only  according  to  the  evidence  produced  at 
the  trial,  or  as  canonists   say,  secundum  allcgata  et  probata.' 
This  is   plain  from  article  xvi.  of  the  present  Instruction, 
\vhich   requires   legal   or  canonical   proof  for    conviction. 
Now  the  sacred  canons,  as  we  have  seen,  enact  that  a  proof 
is  legal  or  competent  (probatio  legalis),  only  when  it  is  sub- 
mitted at  the  trial,  after  the  litis  contestatio ;  that  otherwise 
it  has  no  legal  force  whatever  as  proof.     This  is  so  true  that, 
as  we  show  in  our  Elements,  n.   728,  the  ecclesiastical  judge 
cannot  pronounce  a  person  guilty,  whom,  of  his  own  private 
knowledge,  he  certainly  knows  to  be  guilty,  but  who  by  the 

1  S.  C.  EE.  et  RR.,  Oct.  n,  1818.  2  Droste,  p.  129. 

3  The  Roman  Congregations  alone  have  the  privilege  of  omitting  the  reasons  upon 
which  their  sentence  is  based  in  criminal  causes ;  chiefly  because  there  is  no  appeal 
from  their  decisions. — Droste,  p.  130. 

4  Our  Elements,  vol.  ii.,  n.  1182.  6  Droste,  1.  c.,  p.  130. 

6  There  we  observe  that  no  crime  is  punishable  unless  it  is  designated  by  law  as 
punishable, 

~  Can.  18,  Caus.  2,  Q.  II,  §  noluitenim;  Rota,  1.  c.,  p.  485;  Pierantonelli,  p. 
149;  Droste,  p.  128. 


178       The  Summing  Up,  a^id  the  Final  Sentence. 

judicial  evidence,  is  not  proved  guilty.1  Card,  de  Luca  as- 
signs, as  one  of  the  reasons  of  this  law,  the  following:  "  Ea 
enim  dignoscitur  differentia  inter  forum  internum  et  exter- 
num,  quod  in  primo,  cujus  Deus  est  judex,  qui  corda  et 
mentes  hominum  videt,  sola  veritas,  quamvis  intrinseca  et 
hominibus  occulta,  attenditur.  In  altero  autem,  cujus  judex 
est  homo,  qui  videt  in  facie,  non  autem  in  corde,  requiritur 
extrinseca  justificatio  publica  in  act  is,  adeo  ut  veritas,  non 
solum  sibi,  sed  omnibus  pat 'eat ."  2  For  the  other  reasons  given 
by  St.  Ambrose  and  St.  Thomas,  see  our  Elements,  Vol.  II., 
n.  728,  sq. 

421.  Fourth,  it  must  be  absolutely  in  writing;  and  should 
be  read  by  the  judge  himself,  and  dictated  to  the  chancellor, 
in  the  presence  of  the  prosecutor  and  the  accused  or  his 
advocate.     Consequently  the  accused  or  his  advocate  must 
be  cited  for  sentence,  on  pain  of  nullity  of  the  proceedings. 
One  simple  citation  is  sufficient.     For  fuller  information  on 
final  sentences,  see  our  Elements,  Vol.  II.,  Nos.   1169-1193. 
See  also  the  Third  Volume  of  the  same  works. 

ART.  XXXV. 
How  the  Sentence  is  Delivered  to  the  Accused. 

XXXV.  "  Sententia  reo  intimetur,  qui  potest  ad  auctoritatem   superi- 
oris  instantiae  appellationem  interponere." 

422.  Although,  as  we  have  seen  in  the  preceding  article, 
the  accused  or  his  advocate  is  present  when  the  sentence  is 
pronounced,  yet  the  present  article  justly  prescribes  that  a 
written  notification — i.e.,  an  authentic  copy  of  the  sentence 
— shall  be  served  on  the  accused  (sententia  rco  intimetur]  in 
order  that  he  may  be  able  to  frame  his  appeal  and  introduce 
it  to  the  higher  ecclesiastical  judge.     For,  as  -we  shall  show 
further  on,  \hsjudcx  ad  quern  cannot  receive  a    suspensive 

1  De  Luca,  de  Jud.,  disc.  22,  n.  2,  sq.  3  L.  c. 


The  Summing  Up,  and  the  Final  Sentence.       i  79 

appeal,  except  when  the  appellant  has  shown  by  public 
documents,  namely,  by  an  authentic  copy  of  the  sentence 
and  other  public  documents,  that  the  appeal  is  interposed 
by  (a)  the  proper  person,  (b)  within  the  proper  time,  (c)  from 
a  final  sentence,  or  one  having  the  force  of  a  final  sentence, 
or  from  a  gravamen,  which  cannot  be  undone  by  a  final 
sentence.  See  Const,  ad  Militantis,  Bened.  XIV.,  30  March, 
1742,  §43.44- 

423.  But  in  what  way   must  this  written  notification  of 
the  sentence  be  made  to  the  accused  ?     According  to  some, 
the  answer  is  given  in  article  xiv.  of  the  present  Instruc- 
tion, which  enacts  that  all  intimations  and  notifications  shall 
be   made   (a)  absolutely   in    writing,  (£)   and  be   delivered 
either  by  the  regular  official  messenger  of  the  curia,  or  if 
there   be   none,  by  any  qualified — i.e.,  worthy  or  reliable 
person,  or  also  by  registered  mail. 

424.  According  to  others — v.g.,  the  Acta  S.  Sedis,  Vol.  XV., 
p.  396,  the  notification  in  the  case  must  necessarily  be  made 
through  a  messenger,  and  therefore  cannot  be  made  by  regis- 
tered mail.     The  reason  given  by  the  Acta  S.  Sedis  for  its 
opinion,  is  that  article  xxxvi.  prescribes,  that  in  appeals,  the 
decree  of  the  S.  C.  EE.  et  RR.,  dated  Dec.  18,  1835,  shall  be 
observed.     Now  this  decree  enacts :  "  I.  Reis.  .  .  .  spatium 
decem  dierum  conceditur,  quo.  .  .  .  appellare  possint."     II. 
Decem  dies  numerari  incipient  non  a  die,  quo  sententia  lata 
est,  sed  a  die,  quo  reo  vel  ejus  defensori  per  cursorcm  denun- 
tiata  fuit."     The  Acta  infers  also,  from  the  words  reo  vel  ejus 
defensori,  that  the  sentence  can  be  delivered  either  to  the 
accused  or  to  his  advocate. 

425.  Whatever  may  be  said  on  this  head,  it  is,  no  doubt, 
better   and   safer   to   deliver   the    authentic    copy    of    the 
sentence  to  the  accused,  by  a  messenger  rather  than  by 
registered  mail.     For,  as  we  shall  see  under  article  xxxvii., 
the  accused  must  make  his  appeal  within  ten  days  from  the 
time  he  received  the  notification  of  the  sentence,  and  not  from 


1 8o       The  Summing  Up,  and  the  Final  Sentence. 

the  time  sentence  was  pronounced.  And  if  he  culpably  fails 
to  do  so,  he  loses  his  right  of  appeal ;  consequently,  it  is  of 
the  utmost  importance  that  no  room  be  left  for  doubting-  as 
to  whether  the  notification  was  really  served  upon  the  ac- 
cused, and  as  to  what  precise  time  it  was  done. 

426.  The  second  paragraph  of  the  present  article  states 
that  the  accused  can  appeal  to  the  higher  ecclesiastical 
authority  against  the  decision  of  the  court.  We  shall 
speak  of  appeals  in  the  following  articles. 


CHAPTER  VI. 

APPEALS. 

ART.  XXXVI. 
Nature,  Object,  and  Effects  of  Appeals. 

XXXVI.  "  In  appellatione  observentur  normae  expressae  in  Const.  Sa 
Me.  Benedict!  XIV.,  Ad  Militantis,  diei  30  Martii  1742  ac  coeterae  indictae 
a  S.  C.  Episcoporum  et  Regularium,  decreto  diei  18  Decembris,  1835,  et 
epistola  circulari  diei  i  Aug.  1851." 

427.  This  article  ordains  that  in  appeals,  the  rules  shall  be 
observed  which  are  laid  down  in  the  Const.  Ad  Militantis,  is- 
sued by  Pope  Benedict  XIV.,  March,  1742,  and  to  the  decree 
of  the  S.  C.  EE.  et  RR.  of  Dec.  18,  1835,  and  the  circular 
letter  of  the  same  Congregation,  dated  Aug.  n,  1851.     Now 
the  Const.  Ad  Militantis  enumerates  the  cases  where  appeals 
have  a  suspensive  and  where  they  have  only  a  devolutive  ef- 
fect, and  also  states  the  manner   in  which   suspensive  ap- 
peals are  interposed  and  adjudicated.     The  decrees  of  1835 
and    1851,  lay  down   some  additional  rules  respecting  the 
manner  in  which  the  appeal  is  interposed  and  adjudicated. 
Hence,  it  may  be  said,  that  the  present  article  comprises,  so 
to  say,  the    whole   law  of  the  Church  concerning  appeals 
and    their  effects.      It  therefore  expressly  applies  to    the 
United  States  the  normal  law  of  the  Church  in  regard  to 
appeals,  as  we  shall  explain  farther  on.     This  is  a  radical 
change  in  our  discipline.     For,  up  to  the   present  time,  no 
appeal  whatever,  even  though  it  was  against  a  final  judi- 
cial  sentence,    has,  practically    speaking,  had  a  suspensive 
effect. 

428.  We  have  already  discussed  most  of  the  questions  re- 


1 82  Appeals. 

lating  to  appeals,  in  our  Elements  of  Ecclesiastical  Law, 
Vol.  I.,  Nos.  443,  sq. ;  Vol.  II.,  Nos.  1207,  sq.  Here  we  shall 
merely  touch  upon  the  principal  questions  bearing  upon  the 
matter,  and  discuss  under  separate  headings  the  nature,  ad- 
missibility,  effects,  etc.,  of  appeals. 

§  i .  Nature  and  Object  of  Appeals. 

429.  What  is  an  appeal  ?     It  is  the  act  of  a  person  having 
recourse  against  his  superior  to  the  higher  superior  or  judge, 
on  account  of  a  grievance,  either  already  inflicted  or  about 
to  be  inflicted.1     We  say,  on  account  of  a   grievance  either  al- 
ready inflicted  or  about  to  be  inflicted ;  for  it  is  allowed  to  ap- 
peal against  a  grievance,  judicial  or  extrajudicial,  not  only 
when  it  is  already  inflicted,  but  also,  when  a  person  has  rea- 
son to  fear  that  it  will  be  inflicted.* 

430.  How  many  kinds  of  appeals  are  there  ?     Two  :  judi- 
cial and  extrajudicial.    The  judicial  appeal  (appellatio  judicialis) 
is  that  which  is  interposed  against  judicial  acts  or  proceedings, 
and  can  be  made  during  three  different  stages  of  the  trial : 
first,  before  the  "litiscontestatio" — v.g.,  when  the  judge  assigns 
too  brief  a  space  of  time  for  appearing  in  court ;  next,  after 
the  "  litis  contestatio,"  but  before  the  sentence  ;  such  is  the 
appeal  against  interlocutory  sentences :  finally,  after  the  final 
sentence,  namely  when  the  appeal  is  made  against  the  sen- 
tence or  its  execution.      The  extrajudicial  appeal  (appellatio 
extrajudicialis,  called  also  provocatio  ad  causani)  is  that  which 
is  interposed  against  extrajudicial  acts  or  decrees,  by  which 
a  person  feels  aggrieved.3 

431.  What  is  meant  by  a  simple  recourse  (snpplicatio,recur- 
sus,  querimonice]  and  how  does  it  differ  from  appeals,  judicial 
and  extrajudicial  ?     The  recourse,  as  here  understood,  is  an 
humble  request  addressed  to  the  supreme  judge — i.e.,  to  the 

1  "Appellatio  est  ab  inferiore  ad  superiorem  judicem  provocatio  facta  ratione  illati 
vel  inferendi  gravaminis." — Schmalzg.,  1.  2,  t.  28,  n.  I. 

•  Schmalzg.,  1.  2,  t.  28,  n.  I.  3  Ib.,  1.  c.,  n.  4. 


Appeals.  183 

Pope,  praying  him  to  redress  a  grievance  or  revoke  a  sen- 
tence, against  which  it  is  not  allowed  to  appeal.1  We  say, 
against  tshich  it  is  not  allowed  to  appeal.  This  is  to  be  un- 
derstood in  three  ways.  i.  The  law  of  the  Church  denies  the 
right  of  appeal,  in  some  cases,  absolutely — v.g.,  where  a  person 
has  boi^jnridicall}'  confessed  his  guilt,  and  also  been  juridical- 
ly conticted  of  it.  2.  In  other  cases,  the  law  admits  of  the 
appeal  and  that  either  in  suspensive,  or  at  least,  in  dcvolutivo, 
but  yet  provides  that  if  the  appellant  fails  to  interpose  it 
within  ten  days,  he  shall  forfeit  this  right.  3.  Finally,  in 
other  cases,  which  exclude  the  appeal,  the  law  forbids  the 
appeal  even  /;/  devolutivo,  as  is  the  case  in  sentences  ex  in- 
fonnata  conscientia.  Now,  in  all  these  cases,  the  law  of  the 
Church,  following  the  rules  of  equity  rather  than  of  strict 
justice,  authorizes  the  party  who  feels  himself  wronged,  to 
have  recourse  to  the  Holy  See,  in  order  to  have  the  matter 
examined  and  decided.3  See  our  Elements,  Vol.  I.,  n.  443. 

432.  This  recourse  differs  from  appeals,  judicial  and  extra- 
judicial,  in  several  respects.  Thus,  first,  the  appeal  usually 
suspends  the  sentence  or  its  execution ;  the  recourse  does 
not.  Second,  the  appeal  judicial,  and  extrajudicial,  must  be 
made  within  ten  days  ;  the  recourse  can  be  made  to  the 
Supreme  Pontiff  within  two  years.  Third,  the  appeal  is  an 
ordinary  remedy,  and  granted  to  all,  as  a  right,  being  one  of 
the  legitimate  means  of  a  defence  ;  the  recourse  is  given  as  an 
extraordinary  remedy,  and  as  a  favor,  not  as  a  right?  Fourth, 
appeals,  judicial  and  extrajudicial,  may  be  made  to  the  Met- 
ropolitan ;  recourse  only  to  the  Holy  See.  Why  are  appeals 
established?  Chiefly,  i.  In  order  to  remove  the  grievance 
unjustly  inflicted.  2.  To  correct  the  injustice,  inexperience, 
want  of  knowledge,  or  other  defect  of  the  judge  in  the  first 
instance.  3.  To  enable  the  litigant,  who  either  through 

1  Schmalzg.,  1.  c.,  n.  2;  Stremler,  p.  371.  :  Reiff.,  1.  2,  t.  28,n.  20. 

3  Schmalzg.,  1.  c.;  Stremler,  1.  c. 


1 84  Appeals. 

ignorance  or  negligence  has  failed  to  establish  his  case 
properly  in  the  first  instance,  to  remedy  this  defect  in  the 
second  instance.  See  our  Elements,  Vol.  II.,  n.  1228. 

433.  From  this,  it  will  be  seen  how  salutary  and  necessary  . 
a  remedy  is  the  right  of  appeal.     The  Holy   Ghost  himself 
assures  us,  that  every  man  can  err ;  omnis  homo  mcndax  (Ps. 
cxv.).     Consequently  every  ecclesiastical  judge  is  liable  to 
error,  in  his  actions,  judgments  or  decisions.     The  right  of 
appeal  is  founded  on  this  truth.     For,  if  it  is  possible  that 
the  ecclesiastical  superior  may  fall  into  mistakes,    and  thus 
wrongfully  condemn  a  person,  the  latter   must    have  the 
right  of  calling  upon   the  higher  superior  for  protection. 
Hence  the  right  of  appeal  is  called  by  the  sacred  canons 
remedium  defensionis.     It  is  a  legitimate  means  of  defence, 
and  is,  therefore,  so  far  as  its  substance  is  concerned,  granted 
by  the  very  law  of  nature.     We  say,  so  far  as  its  substance, 
etc. ;  for  its  formalities,  that  is,  the  manner  in  which  it  is  in- 
terposed, etc.,   are  established  by  the  positive  law  of  the 
Church.1 

§  2.    Who  Can,  and  ivlio  Cannot  Appeal? 

434.  In   order   that   an   appeal   may   be     lawful  and  ad- 
missible, it  must  be  interposed  by  the  proper   person — per 
legit  imam  personam.      Who     then    is    allowed    to    appeal  ? 
Speaking  in  general,  the  rule  is  that  all  persons  whatever, 
can  appeal  judicially  or  extrajudicially,  as  the  case  may  be, 
whenever  they  consider  themselves  unjustly  aggrieved   by 
the  action  of  the  superior.2     The  reason  is  that,  as  we  have 
seen,  the  appeal  is  a  means  of  defence,3  and  therefore  granted 
by  the  very  law  of  nature  to  all  persons  who  feel  themselves 
injured. 

435.  Speaking  in  particular,  the  following  persons  can  ap- 

1  Schmalzg.,  1.  c.,  n.  6.  3     Reiff.,  1.  2,  t.  28,  n.  32. 

3  Cap.  Cum  speciali,  61,  $  Porro  (ii.  28). 


Appeals.  185 

peal:  i.  The  person  upon  whom  the  gravamen  is  inflicted. 
2.  All  other  persons  who,  though  not  directly  t  affected  by 
the  gravamen  or  sentence,  yet  are  indirectly  affected  by  it 
and  therefore  consider  themselves  wronged  by  it.1  Thus, 
where  an  ecclesiastic  is  condemned — v.g.,  for  incontinence 
with  a  certain  woman,  the  latter,  though  not  condemned  by 
the  sentence,  can  nevertheless  appeal  against  it,  as  well  as 
the  ecclesiastic  himself,  who  is  condemned.  For  her  good 
name  is  injured  by  the  sentence.  3.  Hence  those  who  are 
not  affected  by  the  sentence,  cannot  appeal. 

§  3.   To  Whom  Should  the  Appeal  be  Made  ? 

436.  As  a  rule,  the  appeal  from  a  judge  or  superior  must 
be  made  to  the  next  higher  judge,  or  immediate  superior. 
This  holds  true  not  only  of  judicial  appeals,  but  also  of  ap- 
peals against  extrajudicial  grievances.2      Consequently  ap- 
peals from  the  Bishop  or  his  Vicar-general  should  be  made 
to  the  Metropolitan  ;    from  the  Metropolitan  to  the  Primate 
or  Patriarch ;  from  the  Primate  or  Patriarch  to  the  Holy 
See.     See  our  Elements,  Vol.  I.,  n.  452. 

437.  We  say,  as  a  rule.     For,  it  is  always  allowed  to  ap- 
peal directly  to  the  Hoi}'  See,  without  first  appealing  to  the 
intermediate  superior.3     Yet  it  seems  to  be  the  mind  and  de- 
sire of  the  Holy  See  that  except  in  certain  cases,  appeals, 
especially  in  countries  which  are  far  away  from  Rome,  should 
be  made  first  to  the  immediate  superior — i.e.,  to  the  Metro- 
politan and  only  afterwards  to  the  Holy  See.      We  say: 
except  in  certain  cases  ;  namely,  where  the  immediate  superior 
is   either   morally  or  physically    hindered   or  incapacitated 
from  hearing  and  deciding  the  appeal — v.g.,    where  he  is 
suspected,  or  excommunicated,  or  suspected.4 

438.  We  have  said  that  the  appeal  from  the  Metropolitan 

1  Can.  non  solent,  c.  2,  q.  6.  -  Bouix,  de  Jud.,  vol.  ii.,  p.  251. 

3  Can.  4,  5,  6,  7,  8,  15,  16,  C.  ii.,  q.  6. 

*  Can.  16,  c.  2,  q.  6;   Santi,  1.  2,  t.  28,  n.  9. 


1 86  Appeals. 

should  be  made  to  the  Patriarch  or  Primate.  This  needs  ex- 
planation. Formerly  Primates  and  Patriarchs  possessed  jur- 
isdiction over  Metropolitans,  and  consequently  could  receive 
appeals  from  their  sentence  or  acts.1  At  present,  however, 
they  no  longer  possess  this  power.  Hence  it  is  not  allowed, 
at  present,  to  appeal  from  the  Metropolitan  to  the  Primate 
or  Patriarch.  A  fortiori,  it  is  not  allowed  to  appeal  from  one 
Metropolitan  to  another,  since  Metropolitans  have  no  juris- 
diction over  each  other,  except  where  they  receive  it  by 
special  delegation  from  the  Holy  See. 

439.  As  a  matter  of  fact,  both  in  the  United  States  and 
elsewhere,  the    Holy  See  at  present  deputes  neighboring 
Metropolitans  to  hear  and  decide  appeals  made  from  other 
Metropolitans,  acting  as  a  court  of  the  first  instance.     Thus, 
as  far  as  concerns  us,  the  TJiird  Plenary  Council  of  Baltimore 
(n.  316)   decrees:     "Quod  si  a  judicio  curise  Metropolitans 
primes  instantics  ad  aliam  curiam  appellandum  sit,  appellatio 
ex  speciali  concessione  S.  Sedis  (ut  etiam  in  Instr.  S.  C.  pro 
causis  matrim.,   §  26,  determinatum  est)  fiet  ad  Metropolita- 
num  viciniorem"     With  us,  therefore,  subjects  of  a  Metropoli- 
tan, can  appeal  from  the  sentence  of  the  latter,  acting  in  his 
capacity  as  judge  of  the  first  instance,  to  the  nearest  Metro- 
politan, as  the  judge  of  the  second  instance,  and  of  course, 
also  from  the  latter  to  the  Holy  See. 

§  4.  In  wJiat  Cases  is  it  Allowed  to  Appeal?     In  what  Cases  is  it 
Forbidden  to  Appeal? 

440.  In   what   cases   can   appeals   be   made  ?     Generally 
speaking,  it  is  allowed  to  appeal,  except  where  canon  law 
expressly  prohibits  it,  against  any  gravamen,  whether  judicial 
or  extrajudicial.    See  our  Elements,  Vol.  I.,  nos.  4/1/1,  sq.    The 
reason  is  that  the  appeal,  as  we  have  seen,  is  a  legitimate 

1  Our  Elements,  vol.   I.,  n.   527,  528. 


Appeals,  187 

means  of  a  just  defence  against   any  act    whatsoever,   by 
which  a  party  feels  aggrieved.1 

441.  We  have  just  said,  except   where  canon  law  expressly 
prohibits  it ;  hence,  in  order  that  a  person  may  have  the 
right  to  appeal  in  a  particular  case,  it  is  not  necessary  that 
the  law  should  expressly  grant  the  appeal  for  such  case. 
It  is  sufficient  if  it  does  not  expressly  exclude  the  case.8 
Consequently  the  onus  probandi  that  the  law  expressly  for- 
bids an  appeal  in  a  particular  case,  lies  upon  the  one  oppos- 
ing the  appeal,  not  upon  the  appellant.     Hence  the  appeal 
must  always  be  admitted,  whenever  it  is  not  shown  by  the  ad- 
versary— v.g.,  by  the  diocesan  prosecutor,  that  the  appeal 
in  the  case  is  expressly  forbidden  by  law.3     Now  the  law  of 
the  Church  expressly  forbids  appeals  in  some  cases  alto- 
gether,   that   is,  both  "  quoad  effectum  suspensivum  "  and 
"  quoad  effectum  devolutivum :"  in  others,  only  as  to  the  sus- 
pensive effect. 

/.  Cases  which  do  not  Admit  of  any  Appeal  Whatever. 

442.  Q.  In  what  cases  does  the  law  of  the  Church  express- 
ly prohibit  appeals  altogether  ? 

A.  In  the  following:  I.  Where  a  person  approves  the 
sentence  pronounced  against  him,  either  expressly  or  tacitly 
—i:g.,  by  not  appealing  within  the  ten  days,  and  thus  re- 
nounces the  right  of  appeal.4 

443.  II.  Where  a  person  is  truly  contumacious,  vere  contu- 
viax — that  is,  where  a  person  having  been,  according  to  the 
present  Instruction,  cited  to  appear  for  trial,  first  in  a  simple 
and  then  in  a  peremptory  manner,  yet  refuses  to  appear  for 
trial,  and  that  without  alleging  any  sufficient  excuse ;   and 
where  such  person  is  therefore  tried  in  his  absence,  found 

1  Leur.,  For.  Eccl.,  1.  2,  1.  28,  q.  1082.  *  Bouix,  de  Jud.,  vol.  ii.,  p.  249. 

5  DeLuca,  dejud.  Disc,  xxxvii.,  n.  2. 

4  Cap.  54,  de  app.  (ii.  28.)  ;  Cap.  20.,  de  off.  Deleg.  (i.  29). 


1 88  Appeals. 

guilty  and  condemned.  From  this  condemnatory  sentence 
there  is  no  appeal.1  For  a  person  thus  stubbornly  disobe- 
dient makes  himself  unworthy  of  the  benefit  of  appeal.  We 
say  truly  contumacious ;  for  presumptive  or  fictitious  contu- 
macy does  not  deprive  of  the  right  of  appeal.2 

/\/\<\.  III.  Where  a  person  has  both  confessed  his  guilt  spon- 
taneously and  in  court,  and  has  also  been  at  the  same  time 
convicted  of  it  by  full  legal  proof  or  probatio  plena.  Hence  a 
person  who  has  merely  confessed  his  crime,  but  not  been 
also  convicted  of  it  by  legal  proof,  has  the  right  to  appeal ; 
for  he  is  allowed  to  revoke  his  confession,  at  least,  when  he 
alleges  and  proves  that  he  made  it  from  error,  etc.3 

445.  IV.  Where  three  sentences  of  the  same  tenor  or  im- 
port have  been  pronounced  against  a  person,  in  the  same 
cause  and  in  the    same   particular    points  of    such   cause. 
For  it  is  allowed  to  appeal  twice,  but  not  three  times  in  the 
same  cause.     Thus  a  person  can  appeal  from  his  Ordinary 
to  the  Metropolitan  ;    then  from  the   Metropolitan  to  the 
Holy  See.4     But  he  cannot  appeal  a  third  time,  lest,  other- 
wise, the  proceedings  should  never  end.     Besides,  the  pre- 
sumption militates   against  a  person   who  succumbs  or   is 
condemned,  not  only  in  the  court  of  the  first  instance,  but 
also   successively   in   two   courts   of    appeal.5      However, 
though  it  is  not  allowed  to  appeal  a  third  time  in  the  same 
case,  yet  it  is  lawful,  after  the  third  adverse  sentence,  to 
supplicate  the  Holy  See  for  a  new  hearing,  that  is,  to  have 
recourse  to  the  Pope  to  review  the  case,  not  as  a  matter  of 
right,  but  as  a  favor.     For  the  other  cases,  which  do  not 
admit  of  appeals,  see  our  Elements,  Vol.  I.,  n.  445,  448. 

446.  Here  it  should  be  observed  that  in  all  these  causes 

1  L.  Ex  consensu  ff.  de  app;  L.  contumacia  ff.  de  rejudicat. 

2  Reiff.,  1.  2,  t.  28,  n.  303.  3  Schmalzg.  1.  c.,  n.  11. 

4  L.  un.   C.  Ne  liceat    in    una   Cvii.   70)  ;  Cap.  sua  nobis  65    de  app.   (ii.    28); 
Pellegr.,  1.  c.,    p.  iii,  Sect.  I,  n.  15.  xxxiv. 
6  Reiff.,  1.  c.,  n.  312. 


Appeals.  1 89 

which  do  admit  of  an  appeal,  even  indevolutivo,  it  is  allowed 
to  have  recourse  to  the  Holy  See  for  redress.  This  re- 
course, however,  does  not,  as  a  rule,  suspend  the  action  of 
the  superior,  a  quo. 

IL  Cases  iL'/iich  admit  only  of  a   devolutive  appeal,  or  even  only 
of  a  simple  recourse. 

447.  Q.  In  what  cases  does  the  law  of  the  Church,  as  in 
force  at  present  also  in  the  United  States,  expressly  forbid 
appeals  in  suspensivo,  though  not  in  devolutivo  ? 

A.  In  the  cases  just  enumerated,  the  appeal  is  forbidden 
altogether,  that  is,  both  "  in  suspensivo,"  and  "  in  devolu- 
tivo." There  are  other  cases  where  the  Church  allows 
the  appeal  indeed,  but  yet  gives  it  merely  a  devolutive,  not 
a  suspensive  effect.1  These  cases,  which  are  laid  down  in 
the  sacred  canons,  the  Council  of  Trent  and  the  Apostolic 
Constitutions,  are  all  summed  up  in  the  Const,  ad  Militantis, 
issued  by  the  great  Pontiff  Benedict  XIV.,  March  30,  1742. 
This  Constitution,  which  is  now  the  general  law  of  the 
Church  in  regard  to  appeals,  is  made  obligatory  also  in  the 
United  States,  by  article  xxxvi.  of  the  Instructio,  now  under 
consideration.  Now  Pope  Benedict  XIV.,  in  the  above 
Const,  ad  Militantis,  decrees  that  no  suspensive  but  only  a 
devolutive  appeal,  or  also,  as  the  case  may  be,  only  a  simple 
recourse  to  the  Holy  See  is  allowed,  against  the  following 
decrees  or  acts. 

448. —  i.  Against  any  decrees  of  the  Bishop,  which  regu- 
late divine  worship,  and  the  celebration  of  the  Mass.  (C. 
Trid.  sess.  21,  c.  8,  de  Ref . ;  sess.  22,  decret.  de  obs.  et  evit. 
in  celebr.  Missse). 

449. — 2.  Against  ordinances  of  the  Bishop  requiring  the 
clergy,  secular  and  regular,  to  assist  at  public  processions, 
and  regulating  the  precedence  among  ecclesiastics  secular 

1  Pierant.,  p.  161. 


1 90  Appeals. 

and  regular,  who  intervene  at  these  processions.  (C.  Trid. 
sess.  25,  c.  13,  de  Reg. ;  Const.  Etsi  Mendicantium  S.  Pii  V., 

§70 

450. — 3.  Against   decrees   that  determine   the    manner  in 

which  rectors  and  others  having  charge  of  souls,  should 
perform  their  parochial  duties,  or  administer  the  sacra- 
ments, or  preach  the  word  of  God,  according  to  the  dis- 
position of  the  Council  of  Trent,  sess.  5,  c.  2,  de  Ref. ;  sess. 
24,  c.  4,  de  Ref. 

45 1. — 4.  Against  the  appointment  of  a  pro-rector  or  vicarius 
curatus  in  churches  which  have  the  care  of  souls  annexed, 
and  which  are  at  the  same  time  united  to  chapters,  colleges, 
monasteries,  etc.,  according  to  the  Council  of  Trent,  sess. 
vii.,  c.  5  and  7,  de  Ref. ;  and  the  Const,  ad  Exequendam  of 
Pius  V. 

452. — 5.  Against  the  decree  or  injunction  of  the  Bishop, 
by  which  he  obliges  the  rector  of  a  parish  which  is  too  large 
to  be  administered  by  himself  alone,  to  take  one  or  more 
assistant  priests.  (C.  Trid.  sess.  21,  c.  4  and  5,  de  Ref.) 

453. — 6.  Against  the  decree  of  the  Bishop,  by  which  he 
divides  a  parish,  in  order  to  form  a  new  one.  (C.  Trid. 
sess.  21,  c.  4,  de  Ref. ;  sess.  24,  c.  13,  de  Ref.) 

454. — 7.  Against  the  appointment  of  a  coadjutor  or  assist- 
ant priest,  for  a  rector  or  parish  priest,  who,  though  of  a 
blameless  character,  is  yet  ignorant  and  unskilful  to  such  a 
degree  as  to  be  unable  to  govern  his  parish  : J  against  the 
suspension  or  even  dismissal  from  a  parish,  inflicted  upon  a 
parish  priest  who  is  juridically  convicted  of  incorrigible  im- 
morality. We  say  juridically  convicted,  that  is,  convicted 
upon  a  trial,  which,  however,  may  be  summary.  We  say 
again,  of  incorrigible,  etc. ; 3  for,  as  the  Council  of  Trent 
expressly  enacts,  dismissal  can  be  inflicted  in  the  case  only 
as  a  last  resort,  and  consequently,  after  the  milder  punish- 

1  C.  Trid.  sess.  21,  c.  6  de  Ref.  *  Cf.  Bouix,  de  Paroch.,  p.  389,  393. 


Appeals.  191 

ments,  such  as  suspension — have  been  vainly  tried.  (C. 
Trid.  sess.  21,  c.  6,  de  Ref.)  When  the  Bishop  thus  inflicts 
suspension  or  dismissal,  no  suspensive  appeal  lies  against 
his  sentence.  And  justly  so ;  for  it  is  manifestly  improper 
and  ruinous  to  souls  to  allow  a  rector,  who  is  convicted  of 
incorrigible  immorality,  to  remain  in  charge  of  souls, 
pending  the  adjudication  of  the  appeal. 

455. — 8.  Against  the  decree  of  the  Bishop  obliging  rectors 
or  parishioners  to  repair  a  parochial  church,  which  stands 
in  need  of  repairs,  in  the  manner  laid  down  by  the  Council 
of  Trent,  sess.  21,  c.  7,  de  Ref. 

456. — 9.  Against  censures,  or  the  sequestration  and  sub- 
traction of  the  ecclesiastical  income,  and  other  legal  reme- 
dies, even  dismissal  from  parish,  inflicted  by  the  Bishop 
upon  a  parish  priest  or  others  having  the  care  of  souls, 
after  due  trial  and  judicial  proceedings,  for  stubbornly  re- 
fusing to  reside  in  their  parish  or  church,  according  to  the 
decree  of  the  Council  of  Trent,  sess.  xxiii.,  c.  i,  de  Ref. 

457. — 10.  Against  the  act  or  decree  of  the  Bishop  deny- 
ing, revoking,  suspending,  or  restricting  the  faculty  to 
hear  the  confessions  of  seculars,  in  regard  to  priests  who 
are  not  rectors  or  parish  priests,  according  to  the  prescrip- 
tion of  the  Council  of  Trent,  sess.  23,  c.  15,  de  Ref.;  and 
the  Const.  Snperna  of  Pope  Clement  X. 

458. — ii.  Against  the  Bishop's  decree,  establishing  fixed 
limits  between  the  various  parishes,  and  making  the  parish 
priests  irremovable,  according  to  the  decree  of  the  Council 
of  Trent,  sess.  24,  c.  13,  de  Ref. 

459. — 12.  Against  the  appointment  of  a  priest  to  act  as 
administrator  of  a  vacant  parish,  till  the  new  rector  is 
properly  appointed  ;  against  the  holding  of  the  concursus ; 
against  the  appointment  of  a  new  rector,  according  to  the 
disposition  of  the  Council  of  Trent,  sess.  24,  c.  18,  de  Ref. 

460. — 13.  Against  the  Bishop's  decree  forbidding  ecclesias- 
tics, secular  or  regular,  to  preach  the  Word  of  God,  in 


192  Appeals. 

opposition  to  his  will  (C.  Trid.  sess.  5.  c.  2,  de  Ref. ;  sess.  24, 
c.  4,  de  Ref. ;  Const.  Inscrutabili  Gregorii  XV.  ;  Const.  Su- 
pcrna  dementis  X.) 

461. — 14.  Against  the  visitation  and  correction  of  abuses, 
in  all  things  relating  to  the  care  of  souls,  and  the  adminis- 
tration of  the  sacraments,  according  to  the  Const.  Inscriita- 
bili  of  Pope  Gregory  XV.1 

462. — 15.  Against  decrees  and  ordinances  respecting  the 
enclosure  of  nuns,  and  the  administration,  spiritual  and 
temporal,  of  convents  of  nuns,  according  to  the  enactment 
of  the  Council  of  Trent,  sess.  25,  de  Reg.  et  mon.,  cap.  5, 
9  and  10,  and  the  Const.  Inscrutabili  of  Gregory  XV.S 

463. — 16.  Against  the  pastoral  visitation  of  the  diocese, 
and  especially  of  monasteries  where  the  religious  discipline 
is  not  being  observed  ;  against  the  execution  of  those  things 
which  have  been  enjoined  and  decreed  in  these  visitations ; 
against  the  decrees  made  even  out  of  visitation,  concerning 
the  life,  propriety  of  conduct,  dress,  etc.,  of  ecclesiastics,  in 
accordance  with  many  decrees  of  the  Council  of  Trent, 
especially  sess.  6,  c.  4,  de  Ref.;  sess.  13,  c.  8,  de  Ref. ;  sess. 
22,  c.  i  and  8,  de  Ref. ;  sess.  24,  c.  10,  de  Ref.  This,  how- 
ever, must  be  understood  in  accordance  with  the  decree  of 
the  S.  C.  EE.  et  RR.,  issued  by  command  of  Pope  Clement 
VIII.  in  1600,  which  enacts  that  when  the  Bishop,  in  mak- 
ing his  visitation,  or  in  correcting  the  manners  of  his 
subjects,  proceeds  judicially,  or  inflicts,  even  though  extra- 
judicially,  regular  ecclesiastical  penalties,  or  an  irreparable 
gravamen,  a  suspensive  appeal  lies  against  his  acts  and 
decisions.  Hence  the  appeal  "  in  suspensive  "  is  forbidden 
in  the  case,  only  when  the  Bishop  proceeds  paternally, — i.e., 
when  he  imposes  paternal  remedies,  such  as  warnings,  etc., 
but  not  when  he  inflicts  penalties  proper,  or  censures,  or 
grave  disciplinary  correction. 

1  Const,  ad  Mililantis,  §19.  2  Ib.,  §  20. 


«•  Appeals.  193 

464. — 17.  Against  sentences  inflicted  by  the  Bishop  "ex 
informata  conscientia  "  according  to  the  Council  of  Trent, 
sess.  14.,  c.  i  et  3,  deRef.  Observe  that  against  these  senten- 
ces the  only  remedy  is  a  recourse  to  the  Holy  See,  as  no 
appeal  whatever,  even  "  in  devolutivo  "  to  the  Metropolitan 
lies  against  them.  See  our  Elements,  Vol.  I.,  n.  445  :  Vol. 
II.,  n.  1283. 

465. — 1 8.  Against  the  fixing  of  the  term  or  time,  within 
which  a  regular,  who  has  notoriously  transgressed  outside 
of  the  monastery,  shall  be  punished  by  his  own  superior.1 
Against  the  punishment  and  correction  itself  of  these  religi- 
ous, as  defined  in  the  Const.  Inscrutabilioi  Pope  Gregory  XV. 

466. — 19.  Against  censures  or  other  punishments  inflicted 
upon  laics,  men  and  women,  and  especially  upon  ecclesias- 
tics, who  have  been  found  guilty,  on  due  trial,  of  concubi- 
nage, according  to  the  Council  of  Trent,  sess.  24.,  c.  8,  de 
Ref.  Matr. ;  sess.  25,  c.  14,  de  Ref.  The  meaning  of  this  law 
is  not  that  the  Ordinary  can  impose  censures  or  other  pun- 
ishments upon  concubinary  ecclesiastics,  without  a  previous 
trial.  For  the  Council  of  Trent,  in  the  place  here  quoted, 
expressly  teaches  that  a  summary  trial  must  precede  the 
punishment.  The  meaning  is  that  from  the  punishment,  in- 
flicted after  due  trial,  there  is  only  a  devolutive  appeal. 

467. — 20.  Against  the  examination,  approval  or  rejection  of 
the  title  of  Patrimony,  Ecclesiastical  Pension  or  Benefice, 
required  for  promotion  to  sacred  orders,  according  to  the 
disposition  of  the  Council  of  Trent,  sess.  21,  c.  2,  de  Ref. 

468. — 21.  Against  the  execution  on  the  part  of  the  Bishop, 
in  the  cases  permitted  by  the  law  of  the  Church,  of  all  pious 
dispositions,  whether  made  by  last  will  and  testament,  or 
between  the  living,  according  to  the  Tridentine  enactment, 
sess.  22,  c.  8,  de  Ref. 

469. — 22.  Against   the  Bishop's  making  the  visitation  of 

1  C.  Trid.  sess.  25.,  c.  14,  de  Reg.  ;  Const.  Susccfti  Mnneris  of  Clem.  VIII. 


1 94  Appeals. 

charitable  institutions,  or  of  any  pious  place  by  whatsoever 
name  designated,  of  colleges,  schools,  confraternities,  etc., 
according  to  the  disposition  of  the  Council  of  Trent,  sess. 
22,  c.  8,  de  Ref. 

470. — 23.  Against  decrees  of  the  Bishop  obliging  persons 
who  administer  the  ecclesiastical  property  of  churches,  or  of 
charitable  and  religious  institutions,  to  render  annually  an 
account  of  their  administration,  except  in  cases  where,  in  the 
foundation  and  rules  of  any  church  or  fabric,  the  contrary 
is  expressly  set  forth,  according  to  the  Council  of  Trent,  sess. 
7,  c.  15,  de  Ref. ;  sess.  22,  c.  9,  de  Ref. ;  sess.  25,  c.  8,  de  Ref. 

471. — 24.  Against  decrees  compelling  notaries,  even 
though  apostolic,  who  write  out  the  acts  of  ecclesiastical 
causes  or  trials,  to  undergo  an  examination  ;  against  their 
removal  or  suspension  from  their  office  of  notary  in  case 
they  are  found  incompetent  or  guilty  of  delinquency  in  the 
discharge  of  their  office,  in  accordance  with  the  Council  of 
Trent,  sess.  22,  c.  10,  de  Ref. 

472 — 25.  Against  the  erection  of  the  seminary ;  the  taxa- 
tion for  its  support ;  the  regulations  concerning  its  govern- 
ment, according  to  the  enactments  of  the  Council  of  Trent, 
sess.  23,  c.  1 8,  de  Ref. 

473. — 26.  Against  the  mandate  or  decree  ordering  the 
vicar-capitular  or  administrator  of  a  vacant  diocese,  to 
render  an  account  of  his  administration  of  the  vacant  dio- 
cese, in  harmony  with  the  Tridentine  prescription,  sess.  24, 
c.  1 6,  de  Ref. 

474. — 27.  Against  the  tJireat  of  the  ecclesiastical  judge 
that  he  will  proceed  to  pronounce  declaratory  sentence, 
that  is,  that  he  will  declare  that  a  person  has  incurred  "  ipso 
facto  "  excommunication,  suspension  or  interdict,  which  is 
a  jure,  that  is,  imposed  by  the  law  itself  and  "  latas  sen- 
tentiae."  Against  the  censures  of  suspension,  excommu- 
nication or  interdict,  which  are  inflicted  ab  hominc,  once 
they  have  been  already  imposed  by  the  ecclesiastical 


Appeals.  195 

judge.1  To  understand  this  better,  it  is  necessary  to  bear  in 
mind  that  censures  are  divided  into  two  kinds  ;  first,  those 
which  are  a  jure  ;  secondly,  those  which  are  ab  homine.  When 
the  Ordinary  threatens  to  declare  officially  that  a  person  has 
incurred  a  censure  which  is  a  jure  and  latce  sententia,  no  sus- 
pensive appeal  lies  against  such  a  threat ;  since,  as  Stremler 
says,  it  is  allowed  to  appeal  "  in  suspensivo  "  against  the 
declaratory  sentence  itself,  after  it  has  been  pronounced. 
But  the  case  is  different  with  censures  ab  homine.  They  do 
not  admit  of  a  suspensive  appeal  after  they  are  once  inflicted. 
Hence  it  is  just  that  they  should  allow  of  a  suspensive  ap- 
peal, before  the}'  are  inflicted.  See  our  Elements,  Vol.  I.,  n. 
445  ;  Vol.  II.,  n.  1279,  sq. ;  and  Vol.  III.,  where  we  speak 
"  ex  professo  "  of  appeals  against  censures. 

475. — In  all  the  above  cases,  and  matters  which  are,  with 
one  or  two  exceptions,  extrajudicial  acts  of  the  superior,  it 
is  allowed  indeed  to  appeal  "  in  devolutivo  "  to  the  Metropol- 
itan or  judge  ad  quern,  or  as  the  case  may  be,  to  have  extraju- 
dicial recourse  to  the  Holy  See,  but  it  is  not  permitted  to 
lodge  a  suspensive  appeal  unless  the  Ordinary  exceeds  his 
powers.  Thus  Pope  Benedict  XIV.  expressly  declares :  "  Vo- 
lumus  quod  ab  archiepiscopis  aliisque  judicibus  ecclesiasticis 
.  .  .  citationes  cum  inhibitione,  per  quam  executio  decretorum 
mandatorum  ct  proi'isionum  hnjusmodi  retardetur,  suspendatur 
ant  impcdiatur,  mininic  conccdantur .  .  .  Decernentes  quod 
adversus  decreta,  mandataet  provisiones  ejusmodi,  quas,  vel 
quae,  ab  episcopis,  aliisque  locorum  Ordinariis  fieri,  vel  capi 
contigerit  in  causis  et  negotiis  praedictis,  vel  simplex  dumtax- 
at,  et  extrajudicialis  recursus  per  viam  supplicis  lib c Hi  ad  Nos  et 
successores  nostros  Romanes  Pontifices,  vel  respective,  et  juxta 
causarum  naturam  et  qualitatcm,  appellatio  ad  quos  de  jure,  in 
solo  devolutivo,  et  sine  retardatione  vel  praejudicio  legitimse 
executionis,  recipi  et  admitti  possit."  z 

1  Const  adMilitantis,  $   45;  Deer.  S.  C.  EE.  et.   RR.,  1600,  $  ix. 
-  Const,  ad  Militantis,  Bened.  XIV.  $  38. 


1 96  Appeals. 

476.  Now  the  effect  of  the    devolutive   appeal  in  these 
cases  is  that  it  confers  upon  the  superior  ad  qucin,  or  the 
Metropolitan  to  whom  the  appeal  is  made,  the  right  and 
duty  to  take  cognizance  of  and  inquire  into  the  whole   mat- 
ter or  alleged  grievance,  and  to  give  his  decision  on  the 
merits  of  the  case,  either  confirming  or  reversing  in   whole 
or  in  part  the  action  or  decision  of  the  superior  a  quo.     We 
say  duty,  etc. ;  for  the  superior  ad  qucin  cannot  remit  the 
case  to  the  superior  a  quo,    but  is  obliged   himself  to    take 
cognizance  of  and  decide  it.1 

477.  We  have  said,  however,  unless  the  Ordinary  exceeds  his 
powers ;  for  if  he  does  overstep  the  limits  of   the  powers 
granted  him  by  the  laws  of  the  Church,  in  the  above  cases,  a 
suspensive  appeal  lies  against  him,  even  in  the  above  cases.2 
To  understand  this  better,  we  observe  that  the  Const,  ad  Mili- 
tantis,  in  so  far  as  it  enumerates  the  cases  not  admitting  of  a 
suspensive  appeal,  may  be  divided  into  three  parts  :  The  first 
gives  the  decrees  of  Bishops  respecting  the  pastoral  admin- 
istration of  the  diocese,  namely,  divine  worship,  the  adminis- 
tration of  the  sacraments,  the  preaching  of  the  Word  of  God  ; 
the  second,  the  decrees  or  ordinances  of  the  Bishop  made 
during  or  in  connection  with  the  visitation  of  the  diocese, 
whether  they  relate  to  the  official  duties  of  ecclesiastics  or 
their  personal  conduct ;  the  third,  the  regulations  or  decrees, 
which  have  for  their  object  the  correction  of  morals  of  eccle- 
siastics, and  are  made  out  of  visitation.* 

478.  Now  against  these  decrees  themselves  there  is  only 
a    devolutive,  but    no    suspensive    appeal.     Consequently, 
even  though  a   person  appeals  against  such  ordinances,  he 
must   carry    them   out,  pending  his   appeal.     But  suppose 
an  ecclesiastic,    against  whom    the  Bishop    makes  such   a 
decree,  refuses  to  obey  the  decree  or  violates  it  ?     Can  the 


1  Cap.  59,  de  app.  ;  Reiff.,  1.  2,  t.  28,  n.  234.     2  Cap.  Irrefragabili,  13,  de  off.  ord- 
3  Cf.  Prael.  S.  Sulp.,  torn.  3,  p.  128. 


Appeals.  197 

Bishop  enforce  his  decree  by  punishments  ?  He  certainly 
can  inflict  paternal  corrections  in  the  case,  such  as  admoni- 
tions, spiritual  retreats,  small  pecuniary  fines,  and  that  with- 
out any  trial,  though  not  without  a  previous  summaria  facti 
cognitio.  Against  these  paternal  remedies,  it  is  allowed  to 
appeal  "  in  devolutivo,"  but  not  "  in  suspensivo."  The 
Bishop  can,  of  course,  also  inflict  regular  punishments  and 
censures,  if  the  nature  of  the  case  so  demands.  But  he 
must  give  the  delinquent  a  trial,  before  inflicting  such  punish- 
ments ; *  and  it  is  allowed  to  appeal,  not  merely  "  in  devo- 
lutivo "  but  also  "  in  suspensivo  "  against  these  punishments 
in  all  the  cases  enumerated  in  the  Const,  ad  Militantis,  save 
in  the  one  or  two  cases  indicated  in  this  Constitution.2  See 
our  Elements,  Vol.  I.,  n.  447  and  555. 

479.  It  should  also  be  borne  in  mind  that  the  Const,  ad 
]\  I  Hit  ant  is  makes  no  new  regulations  or  enactments  what- 
ever, and  does  not,  in  any  way,  change  the  decrees  of  the 
Council  of  Trent,  the  previous  declarations  of  the  S.  C.  EE. 
et  RR.,  or  the  teaching  of  canonists,  either  in  regard  to  the 
effect  of  appeals,  or  the  manner  in  which  they  are  inter- 
posed and  adjudicated.  Thus  Pope  Benedict  XIV.  ex- 
pressly says  : 3  "  Constat  hac  nostra  constitutione  non  novas 
ferri  sed  antiquas  instaurari  leges."  In  fact,  so  far  as  con- 
cerns the  effect  of  appeals,  the  cases  which  do  not  admit  of 
a  suspensive  appeal  are  already  sufficiently  set  forth  by 
Pope  Innocent  IV.,  .in  the  Cap.  Romana  3,  de  app.  in  6°  (ii. 
1 5),  the  Council  of  Trent,  and  in  the  decrees  of  the  S.  C.  EE. 
et  RR.  of  Oct.  16,  1600,  confirmed  by  Pope  Clement  VIII.,4 
and  of  Sept.  5,  1626,  approved  by  Urban  VIII.,  and  in  the 
decree  of  the  S.  C.  C.,  May  15,  i7oo.5  All  that  the  Const,  ad 
Militantis  does  is  to  group  together,  in  one  complete  list,  all 
the  cases  which  do  not  allow  of  a  suspensive  appeal,  and 

1  Droste.,  p.  107.  -  Cf.  Prcel.  S.  Sulp.,  torn.  3,  n.   707,  p.  129. 

3  Const,  ad  Alilitantis,  §   48.  4  See   Giraldi,  Part.i.,  Sect.  308,  p.  204. 

5  Monacelli,  Form.  leg.  p.  2,  t.  15,  form.  2,  n.  8,  p.  210. 


1 98  Appeals. 

which  are  found  scattered  through  the  above  sacred  canons 
and  apostolic  constitutions.1 

480.  Finally,  as  Pope  Benedict  XIV.  remarks  in  his  Const. 
ad  Militantis,  §  39,  there   may   be   particular   cases,  which 
though   they    apparently    fall    under    the    rule    excluding 
suspensive   appeals,  are   yet,  owing   to  particular   circum- 
stances, exempt  from  it,  and  admit  of  a  suspensive  appeal, 
and  that   in  accordance  with   the  mind    of   the  Council   of 
Trent,  the  Pontifical  Constitutions  and  with  the  common 
teaching  of  canonists.     These  cases  or  exceptions  to  the  rule, 
continues  the  Pontiff,  can,  as  a  rule,  be  determined  only  by 
the  prudent  judgment  of  the  judge.     However,  even  in  these 
exceptional  cases,  the  judge  ad  quern  cannot  admit  the  appeal 
"  in  suspensive  "  and  issue  the  inhibitions,  except  it  appears 
to  him,  after  a  summary  inquiry,  that  the  particular  circum- 
stances of  the  case,  as  set  forth  clearly  and  in  writing  by  the 
appellant,  and  verified  by  a  document  which  constitutes  at 
least  a  half-proof,  that  the  case  is  excepted  from  the  general 
rule.      Only  then  can  the  judge  "  ad  quern  "  issue  the  inhi- 
bitions to  the  Bishop  or  judge  "  a  quo,"  being  obliged,  on 
pain  of  nullity,   to  insert  in    his  letters  of   inhibition    this 
clause :  "  Nos  enim,  attentis  juribus,  et  supplici  libello  nobis 
praesentatis,  atque  in  actis  exhibitis,    sicut   prsefertur,  inhi- 
bendum   esse   speciali  rescripto  mandavimus." 2 

///.  Cases  which  Admit  of  a  Suspensive  Appeal. 

481.  Q.  In  what  cases  does  the  law  of  the  Church,  as  in 
force  at  present,  and  as  applied  also  to  the  United  States  by 
the  present  Instruction,  give  a  person  the  right  to  appeal  "  in 
suspensive  "  ?     In  other  words,  in  what  cases  has  the  appeal 
a  suspensive  effect  also  with  us  ? 

A.  Having  seen  in  what  cases  appeals  are  absolutely  for- 

1  Rota,  1.  c.,  p.  530. 

2  Const,  ad  Militantis,  §  39;  Rota,  p.  530;  Giraldi,  Expos.  J.  P.,  p.  212,  n.  xxxv. 


Appeals.  199 

bidden,  and  in  what  cases  they  are  indeed  allowed,  though 
only  ///  devolutivo,  it  follows  that  in  all  other  cases,  not  men- 
tioned above,  it  is  allowed  to  appeal  both  "  in  devolutivo  " 
and  "  in  suspensive."  For  it  is  certain  that  unless  the  con- 
trary is  expressly  stated,  the  appeal  has  always  a  suspensive 
effect,  no  matter  whether  the  appeal  is  from  a  judicial  or  an 
extrajudicial  grievance.  To  understand  this  teaching  better, 
it  is  necessary  to  recall  the  division  of  appeals  into  judicial 
and  extrajudicial.  Judicial  appeals  are  subdivided  into  those 
which  are  interposed  against  a  final  judicial  sentence,  and 
those  which  are  against  an  intermediate  or  interlocutory 
judicial  decision. 

482.  I.  It  is  certain  that  it  is  allowed  to  appeal  against  all 
final  judicial  sentences,  except  in  the  few  cases  expressly 
stated  in  law,  and  enumerated  by  us  above,  n.  442,  sq.  and  that 
such  appeal  produces  a  suspensive  effect.1     For  the  law  of  the 
Church  expressly  enacts  that  an  appeal  from  a  final  sentence 
suspends  the  jurisdiction  of  the  judge  a  quo,  so  that  he  has 
no  power  to  execute  his  sentence.2     This  law  is  also  clearly 
applied  to  the  United  States  by  the  recent  Instruction  of  1884, 
in  article  xxxvii. 

483.  However,   the  Third  Plenary  Council  of  Baltimore,  n. 
286,  decrees :  "  Cum  in  pluribus  provinciis  nostris  rectores 
ecclesiarum  ipsa  lege  constituantur  ex  officio  ecclesiarum 
suarum   aeditui,  caute  nobis   providendum   est   ne,  quando 
necesse  fuerit  rectorem  aliquem  munere  suo  privare,  ipse 
per  interjectam  appellationem  sententiae  executionem  impe- 
diat,  et  sic  officium  aeditui  coram  potestate  civili  conservet. 
Statuimus  ergo,  annuente  Apostolica  Sede,  nullum  rectorem 
etiam  inamovibilem   juridice  remotum,  depositum,  vel   mu- 
nere suo  privatum,  contra  sententiam  Ordinarii  in  suspensive, 
ut  aiunt,  appellare  posse,  sed  in  devolutivo  tantum,  ita  ut  de- 
sinat  esse  sedituus  ecclesise  cujus  rector  erat,  vel  perpetuo, 

1  Cap.  7  et  10,  de  app.  in  6°  (ii.  15);  Reiff.,  1.  2,  t.  28,  n.  210.  a  Ib. 


2OO  Appeals. 

vel  usque  ad  tempus  quo  judex  ad  quern,  definitive  litem  ter- 
minans,  eum  in  munus  suum  redintegret.  Quapropter  usque 
ad  litis  terminationem  non  definitive  alius  rector,  sed  admin- 
istrator cum  juribus  competentibus  instituetur,  et  Episcopus 
interim  utriusque,  turn  amoti  rectoris  turn  administratoris 
honestse  sustentationi  providebit." 

484.  We  say  "final judicial  sentences;"  since  the  rule  is 
that  in  judicial  causes  or  proceedings  it  is  not  allowed  to 
appeal  either  "  in  suspensive  "  or  "  in  devolutivo,"  until  after 
the  final  sentence  has  been  pronounced.     Thus  the  Council 
of  Trent  expressly  ordains  :  "  There  shall  be  no  appeal,  before 
the  definitive  sentence,  from  the  Bishop  or  his  Vicar-general 
in  spirituals,  against  any  interlocutory  sentence,  etc." 1     For, 
according  to  the  new  law,  as  defined  by  the  Council  of  Trent, 
all  causes  must,  in  the  first  instance,  be  tried  before  and  de- 
cided by  the  Ordinary.2     Hence,  before  the  Ordinary  has  ren- 
dered his  final  decision  in  a  case,  the  latter  cannot  be  carried 
before  the  higher  judge  on  appeal,  except  where  the  Ordi- 
nary fails  to  render  his  final  decision  within  two  years  from 
the  time  the  suit  was  instituted. 

485.  II.  We  have  just  said,  the  rule  is  ;  for  there  are  three 
exceptions.     Thus  it  is  allowed  to  appeal,  in  suspcnsivo,  before 
:the  final  sentence  is  pronounced,  and  during  the  course  of 
the  trial  or  judicial  proceedings,  against  intermediate  or  in- 
terlocutory decisions,  resolutions  or  acts  of  the  ecclesiastical 
judge  in  these  three  cases :  (a)  when  the  intermediate  decis- 
ion or  act  is,  in  reality,  equivalent,  in  its  effects,  to  a  final  sen- 
tence;   (U)  when  it   inflicts   a  damnum  irreparabile,  that  is,  a 
grievance  which  cannot  be  remedied  by  a  final  sentence  or 
by  an  appeal  from  a  final  sentence  ;  (c]  when  it  is  not  allo'<.ved 
to  appeal   from   the   final   sentence   itself.3     In  these  three 
cases,  it  is  allowed  to  appeal,  not  only  "  in  devolutivo,"  but 

1  Sess.  xiii.  C.  I  de  Ref. ;  sess.  24.  c.  20,  de  Ref. 

2  C.  Trid.  sess.  24,  c.  20  de  Ref. 

3  Trid.  sess.  xiii.,  c.  i.  de  Ref. ;  sess.  xxiv.,  c.  20  de  Ref. ;  Stremler,  p.  404. 


Appeals.  20 1 

also  "  in  suspensive  "  against  an  intermediate  decision  and 
before  the  final  sentence  is  pronounced.1  But  from  all  other 
interlocutory  decisions,  which  are  given  prior  to  the  final 
sentence,  there  is  no  appeal  whatever,  not  even  "  in  devolu- 
tivo."  This  is  but  just  and  necessary.  For,  if  it  were 
allowed  to  appeal,  even  though  only  "  in  devolutivo,"  against 
intermediate  decisions  or  acts,  which  do  not  materially  affect 
the  main  cause  on  trial,  nor  inflict  an  irremediable  gravamen, 
there  would  be  no  end  to  trials  or  judicial  proceedings. 
However,  a  person  has  the  right  to  enter  a  protest  against 
such  intermediate  decisions.  This  protest  must  be  noted  in 
the  minutes,  but  has  not  the  legal  effect  of  an  appeal. 

486.  This  teaching  concerning  appeals  from  intermediate 
decisions,  as  enacted  by  the  Council  of  Trent,  has  been  con- 
firmed by  subsequent  legislation,  especially  by  the  decree  of 
the  S.  C.  EE.  et  RR.,  ad  tollcndas,  §  iii.,  v.,  viii.,  ix.,  and  by 
Pope  Benedict  XIII.,2  and  especiallyby  Pope  Benedict  XIV., 
in  his  Const,  ad  Militant  is,  1742,  §  43,  45,  and  consequently  is 
the   law  to  be  followed  at  present  all  over  the  world,  and 
also  in  the  United  States. 

487.  Stremler  observes  that  the  disposition  of  the  Council 
of  Trent  restricting  appeals  against  interlocutory  decisions, 
does  not  apply  to  ecclesiastical  causes  of  a  civil,  but  only  to 
those  of  a  criminal  character.3         Here  the  question  arises  : 
When  is  an  intermediate  decision  or  sentence  regarded  as 
having  the  force  of   a  final  sentence,  or  inflicting  an  irre- 
mediable grievance  ?     For  the  answer,  see  our  Elements  of 
Ecclesiastical  Law,  Vol.  II.,  Nos.  1159,  sq. 

488.  III.   When  does  the  appeal  against  cxtrajudicial  acts  or 
decisions  produce  a   suspensive  effect  ?     It  is   certain  that   an 
appeal  in  suspensive  lies  against  extrajudicial  acts  or  decisions, 
which   inflict   a    grievance   that    cannot   be   remedied    or 


1  Decretum  adtottendas,  S.  C.  EE.  et  RR.  1600,  $  viii. 

-  Ad  Deer.  ix.  Clem.  VIII.,  ad  tolZendas.  3  S'.remler,  p.  405. 


2O2  Appeals. 

undone.1  With  regard  to  appeals  from  other  extrajudicial 
acts  or  sentences,  the  rule  is,  that  they  also  have  not  only  a 
devolutive,  but,  moreover,  a  suspensive  effect,  unless  the 
contrary  is  expressly  stated.  For  the  law  of  the  Church 
expressly  gives  a  person  the  right  to  appeal  against  ex- 
trajudicial grievances.  Thus  Pope  Alexander  III.  enacts  :* 
"  Quoniam  sacri  canones  etiam  extra  judicium  passim  ap- 
pellare  permittunt." !  Now,  by  the  right  of  appeal,  the 
sacred  canons  mean  the  right  to  appeal  in  suspcnsivo,  unless 
the  contrary  is  expressly  stated.  (See  our  Eleme?its,  Vol.  II., 
Nos.  1244,  sq.) 

Professor  Santi,  however,  observes  that  the  appeal  against 
extrajudicial  grievances,  which  are  not  irremediable,  pro- 
duce a  suspensive  effect,  not  at  once,  but  only  after  the 
superior  ad  quern,  having  seen  the  cause  or  reason  of  the 
appeal,  given  by  the  appellant,  admits  the  appeal  and  begins 
to  examine  into  the  merits  of  the  case.4 

489.  We  have  said  that  the  extrajudicial  appeal  has  a 
suspensive  effect,  unless  the  contrary  is  expressly  stated  in 
law.  Now,  the  law  of  the  Church,  as  enforced  at  pres- 
ent, and  embodied  in  the  Const,  ad  Militantis  of  Benedict 
XIV.,  and  therefore  also  in  force  with  us,  enacts  that  the 
appeal  against  the  extrajudicial  acts  or  decrees,  which  are 
enumerated  in  said  Constitution  and  given  by  us  above, 
shall  have  no  suspensive  effect.  For  fuller  information  on 
this  point,  see  our  Elements,  Vol.  II.,  n.  1249,  1250.  We  sum 
up  as  follows :  According  to  the  law  of  the  Church,  as  em- 
bodied in  the  Const,  ad  Militantis,  of  Benedict  XIV.,  and 
therefore  also  in  force  with  us,  the  appeal  has  a  suspensive 
effect,  whenever  it  is  interposed  against  a  final  sentence,  or 
an  interlocutory  sentence  which  has  the  force  of  a  final  sen- 


1  Bened.  XIV.,  Const,  ad  Milit,,  §  45. 

-  Cap.  51  de  app.  (ii.  28) ;  Pierantonelli,  p.  160  ;  Prael.  S.  Sulpitii,  vol.  iii.,  p.  141. 

3  Cap.  5,  de  app.  (ii.  28).     <  Santi,  1.  2,  t.  28,  n.  3;  arg.  cap.  46  de  app.  (ii.  28). 


or 


Appeals.  2CT 

tence,  or  inflicts  an  irreparable  injury,  or  against  any  act 
decision,  even  though  extrajudicial,  of  the  superior  which 
imposes  an  irremediable  gravamen. 

ART.  XXXVII. 
When  the  Appeal  must  be  Interposed. 

XXXVII.  "  Intra  terminura  decem  dierum  a  notificatione  sententiae 
interpositio  appellationis  fieri  debet,  quo  elapso  tempore  sententiae  exe- 
cutio  locum  habet." 

490.  Having  seen,  in  the  preceding  article,  what  is  meant 
by  appeals ;  in  what  cases  they  can  be  made  ;  what  is  there 
effect ;  it  now  remains  to  discuss  the  manner  in  which  they 
are  made.     This  mode  of  appealing  is  set  forth  in  the  de- 
cree of  the  S.  C.  EE.  et  RR.,  1835,  and  its  circular  letter  of 
1851.     In  accordance  with  the  general  law  of  the  Church,  * 
the  present  article  states  that  the  appeal  must  be  interposed 
before  the  a  quo,  within  ten  days  from  the  time  the  appellant 
has  received  official  notification  of  the  sentence.     This  holds 
true,  not  only  with  regard  to  appeals  from  final  judicial  sen- 
tences, ol  which  we  here  speak,  but  also  of  appeals  against 
interlocutory  decisions,  which  either  have  the  force  of  a  fi- 
nal sentence  or  inflict  an  irremediable  grievance,  and  of  ap- 
peals from  extrajudicial  grievances.2 

491.  We  sa.y,frotii  the  time  the  appellant  has  received  official 
notification,  etc. ;  consequently,  the  ten   days  are   not  com- 
puted from  the  day   the  sentence  was   pronounced,  even 
though  the  accused  was  present  when  it  was  pronounced, 
but  from  the  day  the  official  notice  of  it  was  served.     Thus 
the  decree  of  the  S.  C.  EE.   et  RR.  of  1835,  which  the  In- 
struction (art.  xxx vi.)  lays  down  as  the  rule  to  be  followed, 
says :  "  Decem  dies  numerari  incipient  non  a  die,  quo  sen- 
tentia  lata  est,  sed  a  die,  quo  reo  vel  ejus  defensori  per  cur- 

1  Cap.  15  de  Sent,  et  rejud.  (ii.  27) ;   Cap.  8  de  app.  in  6°  (ii.  15). 

;  Schamlzg.,  1.2,  t.  28,  n.  71  ;   Pellegr.,  Part,  iii.,  Sect,  i.,  n.  70.  • 


204  Appeals. 

sorem  denuntiata  fuit."  (§  ii.).  Observe  that  these  ten  days 
are  to  be  counted  as  beginning  at  the  very  hour  the  notice 
was  received  and  as  ending  at  the  same  hour  ten  days  after- 
wards, so  that  if  a  person  were  notified  of  the  sentence,  for 
instance,  on  Dec.  10,  at  9  A.  M.,  the  ten  days  would  expire 
on  Dec.  20,  at  9  A.  M.1  Moreover,  these  ten  days  run  con- 
tinuously and  without  any  interruption,  and  consequently 
include  even  Sundays  and  holidays  ;  and  justly  so  ;  for  it 
is  allowed  to  appeal  also  on  Sundays  and  holidays  of  obli- 
gation. 3 

492.  We  say,  even  though  the  accused  was  present  wJien  the 
sentence  was  pronounced.     Here  it  will  be  seen  that  the   In- 
struction has  changed   the  law  and  custom  of  former  years. 
For  nearly  all  canonists  formerly  held  that  the  ten  days  be- 
gan to  run  f  rom  the  very  moment  the  sentence  was  pronounced, 
when  the  accused  was  present  and  heard  it  pronounced.* 
The  Instruction,  however,  enacts  that  in  all  cases,  even  where 
the  accused  is  present  and  hears  the  sentence,  the  ten  days 
shall  be  computed,  not  from  the  day  the  sentence  was  passed, 
but  from  the  time  an  authentic  copy  or  official  notice  of  the 
sentence  was  properly  delivered  to  the  accused.     This  is 
just.     For,  before  a  person   appeals,  he  ought  to  know,  not 
simply  the  general  tenor  of  the  sentence,  but  also  its  specific 
nature,  and  the  reasons  upon  which  it  is  based.4 

493.  If  no  appeal  is  interposed  within  ten  days,  the  appel- 
lant is  regarded  as  having  abandoned  his  appeal  and   the 
sentence  becomes  resjudicata,  and  may  be  forthwith  executed. 
If,  however,  the  appellant  can  show  that  he  was  hindered  by  a 
just  cause— v.g.,  sickness,  poverty,  etc.,  from  making  the  ap- 
peal within  the  ten  days,  he  should  not  be  cut  off  from  the 

1  Schmalzg.,  1.  c.,  n.  72.  *  Ib. 

3  Arg.  Cap.  15,  de  Sent,  et  re  jud. ;  Cap.  8  de  app.  in  6°;  Bouix,  de  Tud.,  vol. 
ii.,  p.  282. 

*  S.  C.  C.  in  Aritana,  Particip.  17  Sep.  1859  ;  Pallotini,  Coll.  v.  appellatio, 
^  iii.,  n.  12-15. 


Appeals.  205 

right  of  appealing,  even  after  the  lapse  of  the  above  term.1 
For  fuller  information,  see  our  Elements,  Vol.  I.,  nos.  /]/|/|, 
sq. ;  Vol.  II.,  Nos.  1207,  sq. 

494.  The  appeal  must  be  interposed  within  ten  days  before 
the  judge  "  a  quo"  that  is,  before  the  judge  from   whose  sen- 
tence the  appeal  is  made,  so  that  he  may  not  proceed  any 
farther  in  the  case,  nor  execute  his  sentence.     Is  it  neces- 
sary that  the  appeal  should  be  interposed  before  the  judge 
"  a  quo  "  in  writing  ?    Here  we  must  distinguish  between  two 
kinds  of  appeals :     First,  those  which  are  made  against  final 
judicial  sentences  and  also  against  interlocutory  sentences 
having  the  force  of  a  final  sentence.     Second,  those  which 
are  against  interlocutory  sentences,  that  inflict  a  gravamen 
which  cannot  be  undone  by  a  final  sentence,  and  also  those 
which  are  against  extrajudicial  grievances.     Now,  appeals 
of  the  first  kind,  namely,  against  final  or  quasi-final  sentences, 
can  be  made  viva  vocc,  when  they  are  interposed  the  same 
day  the  sentence  is  pronounced  ;  when  they  are  made  after- 
wards, they  must  be  in  writing.     This  writing  or  letter  to 
the  judge  a  quo  need  not  assign  the  grievance  or  cause  of  the 
appeal,  nor  state  anything  else  but  the  simple  fact  that  an 
appeal  is  taken  against  the  final  or  quasi-final  sentence.     For 
the  formula  of  appeal  from  final  sentences,  see  Bouix,  de 
Jud.,  Vol.  II.,  p.  596. 

495.  But  when  the  appeal  belongs  to  the  second  class, 
that  is,  when  it  is  against  an  interlocutory  sentence,  inflict- 
ing  a  damnum   irrcparabile,   or  against  extrajudicial   griev- 
ances, the  appellant  must  always  interpose  his  appeal  in 
writing,  and  state  (though  not  prove)  at  the  same  time  the 
grievance  or  reasons  on  account  of  which   the   appeal  is 
made,  in  order   that   the   judge   a  quo   may   himself,   if  he 
chooses,   redress  the  grievance.     For,  as  we  show  in  our 


1  De  Luca,  de  Jud.,  disc.  37,  n.  29;  Pierant.,  p.  35  ;    Pellegr.,  Part  iii.,  Sect,    i., 
n.  72. 


206  Appeals. 

"  Elements,"  Vol.  II.,  Nos.  1209,  the  judge  "  a  quo  "  may  him- 
self correct  interlocutory  decisions,  inflicting  an  irreparable 
injury,  and  redress  extrajudicial  grievances,  even  after  an 
appeal  has  been  interposed.  And  after  he  has  done  so,  he 
can  proceed  in  the  case,  notwithstanding  the  appeal.  The 
case  is  different  with  final  or  quasi-final  decisions.  These 
the  judge  "  a  quo  "  cannot  himself  reverse  or  change,  since 
he  is  functus  officio,  once  he  has  pronounced  them. 

ART.  XXXVIII. 
Diitics  of  the  Judge  "  a  quo  "  with  Regard  to  Appeals. 

XXXVIII.  "  Appellations  interposita,  continue  Curia  ad  auctoritatem 
Ecclesiasticam  superioris  instantiae  omnia  acta  causae  in  suis  autogra- 
phis,  id  est,  processum,  ejus  summarium,  defensionem  ac  sententiam  mit- 
tit." 

496.  When   the  Ordinary,    that   is,    the    Curia   or   judge 
"  a  quo, "  has  thus  been  notified  of  an  appeal  against  his  sen- 
tence, whether  final  or  interlocutory,  in  the  sense  explained, 
he  must  suspend  the  execution  of  such  sentence,  and,  as  the 
present  article  expressly  enacts,  he  must  forthwith  transmit 
to  the  superior  or  judge  to  whom  the  appeal  is   made,  all 
the  acts  and  documents  of  the  cause  or  trial  of  the  first  in- 
stance, namely,  the  acts  of  the  trial  itself,  both  informative 
and  probative,  its  synopsis,  the  defence,  and  the  sentence. 
He  must  send   the  originals  themselves   and  not  merely  a 
copy. 

497.  Here,  then,  it  will  be  seen  that  the  procedure  marked 
out  by  the  Instruction,  in  the  present  article,  differs  some- 
what from  that  laid  down  by  the  sacred  canons.     First,  no 
mention  whatever  is  made  of  the  apostoli.     According  to 
the  general  law  of  the  Church,  as  contained  in  the  sacred 
canons,1  the  appellant  was  always  obliged  to  ask  the  judges 
quo  for  the  apostoli,  and  that  within  thirty  days,  on  pain  of 

1  Can.  post  appellationem  31,  c.  2,  q.  6;  Cap.  6  de  app.  in  6C;   Clem.  2,  de  app. 


Appeals.  207 

forfeiting  his  right  of  appeal,1  as  we  show  in  our  Elements, 
Vol.  II.,  n.  121 1. 

498.  The  judge  "  a  quo"  was  bound  to  give  the  appellant 
the  apostoli  or  certificate  of  appeal,  and  also  a  copy  of  all  the 
acts  of  the  cause,  which  the  appellant  himself  forwarded  to 
the  judge  ad  qucm,  or  the  judge  to  whom  he  had  appealed. 
Thus  the  Council  of  Trent,  sess.  24,  c.  20  de  Ref.,  ordains  : 
"  Furthermore,  should  any  individual  appeal  in  those  cases 
allowed  by  law,  or  lodge  a  complaint  touching  any  griev- 
ance, or  have  recourse,  as  aforesaid,  to  a  judge.  .  .  .  he  shall 
be  bound  to  transfer,  at  his  oiun  expense,  all  the  acts  of  the  pro- 
ceedings that  have  taken  place  before  the  Bishop.  .  .  .  Moreover, 
the  notary  shall  be  bound  to  furnish  the  appellant,  upon 
payment  of  a  suitable  fee,  with  a  copy  of  the  proceedings, 
as  soon  as  may  be,  and  within  a  month  at  the  furthest" 

499.  Instead  of  all  this,  the  Instruction  simply  enacts  that 
the  judge  "  a  qua  "  (or  curia  "  a  qua,")  shall  himself  forward, 
and  that  at  once,  to  the  judge  ad  quern,  the  entire  original  acts 
of  the  case,  thus  doing  away  with  the  necessity  of  asking 
for  or  giving  the  apostoli.     Consequently  these  apostoli  seem 
to  be  entirely  abolished  by  the  present  Instruction*     In  fact, 
as  we  say  elsewhere,  these  apostoli  had  long  ago  fallen  into 
disuse,   if  not  universally,  at  least  in    many   ecclesiastical 
courts.     Our  Elements,  Vol.  I.,  p.  425. 

500.  Secondly,  in  former  times,  the  judge  "  a  quo  "  was 
obliged  to  send  merely  a  copy  of  the  acts :  now  he  is  bound 
to  forward  the  originals  themselves.     Observe,  the  Instruction 
says  that  "  omnes  actus  causoe,"  must  be  sent  to  the  judge  ad 
quern.     Hence,  as  Cardinal  de  Luca  teaches,3  the  entire  acts 
and  proceedings  of  the  first  instance,  and  consequently,  not 
only  those  which  are  material  and  relevant,  but  also  those 
which  are  immaterial  or  irrelevant,  provided,  of  course,  they 

1  Schmalzg.,  1.  2,  t.  28,  n.  75.  *  Rota,  1.  c.,  p.  536. 

3  De  Jud.  Disc.  35.37,  n.  37,  38. 


208  Appeals. 

belong  to  the  case,  must  be  forwarded,  in  their  entirety,  to  the 
jndcx  ad  qucm.  In  accordance  with  this  rule,  the  Instruction 
not  only  says  "  omnia  acta,"  but  moreover  specifies  the 
various  acts  themselves,  which  must  be  forwarded  to  the 
judge  ad  quern,  namely,  (a)  the  processum,  that  is,  all  the  acts 
of  the  trial,1  namely,  the  citations,  delays  asked  and  granted, 
challenges  against  the  judge,  exceptions  made  by  the  ac- 
cused, the  indictment  or  charges  preferred  by  the  diocesan 
prosecutor,  the  plea  or  contestation  of  the  accused,  the 
proofs  submitted  on  both  sides,  such  as  the  testimony  of 
the  witnesses,3  and  all  the  other  steps  or  proceedings  of  the 
trial ; 8  (b)  the  synopsis  of  the  trial  made  out  by  the  auditor ; 
(<:)  the  defence ;  (a7)  the  sentence. 

501.  Q.  Can  the  metropolitan  or  judge,  to  whom  an  appeal 
has  been  interposed,  proceed  to  hear  and  decide  the  case 
appealed,  even  though  the  acts  of  the  first  instance  have  not 
been  forwarded  to  him  ? 

A.  The  rule  is,  that  he  cannot,  and  that  if  he,  nevertheless, 
does  proceed  without  these  acts,  his  whole  procedure  is  null 
and  void.4  The  reason  is,  that  he  should  principally  judge 
from  the  acts  of  the  first  instance,  whether  the  sentence  or 
decree  or  decision  of  the  judge  a  quo  is  to  be  confirmed,  or 
amended,  or  reversed.  We  say,5  the  rule  is ;  for  where  the 
judge  a  quo  is  guilty  of  culpable  delay  in  sending  the  acts, 
or  in  any  other  way  raises  obstacles  against  the  entire  acts 
being  delivered  to  the  judge  ad  qucm,  or  even  refuses  to 
send  them,  the  metropolitan  or  judge  ad  qucm  can  con- 
demn him  to  pay  double  the  cost  of  the  trial,6  and  proceed 
to  adjudicate  the  case  appealed  to  him,  without  the  acts, 
and  solely  on  the  ex  parte  papers  or  proofs  submitted  by 
the  appellant.1 

1  Arg.  Cap.  quoniam  II  de  prob.  *  Leur.  For.    Eccl.,  1.  2,  t.  28,  q.   1081. 

3  Our  Elements,  vol.  ii.,  n.  925.  «  Card,  de  Luca,  de  Jud.  Disc.  37,  n.  34. 

5  Leur.,  1.  c.,  q.   1081.  c  Cone.  Trid.,  sess.  24,  c.  20  de  Ref. 

7  Const,  ad  Militanlis,  §  44;  Card,  de  Luca,  1.  c.,  n.  41. 


Appeals.  209 

502.  Observe  also  that  the  Ordinary  or  superior  a  quo  is 
bound  to  forward  the  acts  of  the  case  to  the  metropolitan 
or  judge  "  ad  quern,"  not  only  when  the  appeal  is  judicial 
and  suspensive,  but  also  when  it  is  extrajudicial  and  merely 
dci'olutivc.     This  is  plainly  stated  by  the  Council  of  Trent, 
sess.  24,  c.  20,  de  Ref. 

ART.  XXXIX. 

Rights  and  Duties  of  the  Judge  "  ad  quern"   in  Regard  (a)  to 

Receiving  the   appeal;     (U)   Issuing  Inhibitions  ; 

(c)  Revoking  A  ttentates. 

§  i.  Admission  of  the  Appeal. 

XXXIX.  "  Haec  porro  superioris  instantiae  auctoritas  appellations 
cognita  appellant!  injungit,  ut  intra  triginta  dies  defensorem  deputet,  qui 
ab  ipsa  approbandus  est." 

503.  This  and  the  two  succeeding  articles  point  out  the 
rights  and  duties  of  the  judge  to  whom  the  appeal  is  made. 
When  the  judge  "  ad  quern  "  has  received  the  above  acts 
and  documents  from  the  judge  "  a  quo,"  or  also  the  letters 
of  appeal,  together  with  an  authentic  copy  of  the  sentence, 
from  the  appellant,  and  has  ascertained,  by  an  inspection  of 
these  documents,  that  the  appeal  is  in  form,1  that  is,  has 
been  interposed  (a)  by  the  proper  person,  (£)  within  ten 
days,  (c}  against  a  final  sentence,  (d}  or  one  having  the  force 
of  a  final  sentence,  (e)  or  from  a  gravamen  which  cannot  be 
remedied  by  a  final  sentence,  he  shall  forthwith  admit  the 
appeal,  and  that  "  in  suspensivo,"  and  then  notify  the  appel- 
lant that  within  thirty  days  he  must  appoint  his  counsel, 
who  is  to  be  approved  by  this  same  judge  "ad  quern." 

504.  From  this  it  will  be  seen  that  the  rights  and  duties 
of  the  judge  "  ad  quern,"  as  outlined  in  the  Instruction,  vary 
in  several  respects  from  the  rights  and  duties  of  the  same 

1  Card.  Kutschker,  Eher.  vol.  v.,  p.  947. 


2io  Appeals. 

judge,  as  defined  in  the  sacred  canons.  Thus  according  to 
the  common  law  of  the  Church,  the  judge  "  ad  quern,"  has 
no  power  to  fix  the  time  within  which  the  appellant  must 
introduce  the  appeal  before  him  or  his  court.1  On  the  con- 
trary, the  law  vests  this  power  in  the  judge  "  a  quo,"  or  in 
case  the  latter  does  not  fix  the  time,  leaves  the  appellant 
free  to  introduce  his  appeal  before  the  judge  "  ad  quern,"  at 
any  time  within  a  year,  or  according  to  some,  six  months 
from  the  date  the  appeal  was  first  made,  as  we  show  in  our 
Elements,  Vol.  II.,  n.  1213. 

505.  The  Instruct™  rescinds  all  this,  and  vests  the  judge 
"  ad  quern "  with  the  right   and   duty   to   fix   the   time- 
namely,  thirty  days, — within  which  the  appellant  must  ap- 
point his  advocate,  and  thus  introduce  his  appeal  before 
him.     Hence   the   appellant   is   no  longer  free,  as  he  was 
formerly  under  the  common  law,  to  choose  his  own  time, 
within  a  year,  nor  does  the  judge  "  a  quo  "  seem  to  have, 
any  longer,  the  right  to  fix  the  term  for  introducing  the  ap- 
peal before  the  judge  "  ad  quern." 

506.  We  have  said,   when   the  judge   "  ad  quern  "...  has 
ascertained  by  an  inspection  of  these  documents,  etc. ;  for  it  is 
plain  that  he  cannot  admit  a  suspensive  appeal  except  in 
those  cases  where,  as  we  have  shown  above,  it  is  allowed  to 
make  such  appeals.     Now,  how  is  the  judge  "  ad  quern  "  to 
find  out  whether  the  appeal  brought  before  him  is  in  reality 
made  against  a  final  sentence,  or  a  quasi-final  sentence,  or  an 
irreparable   gravamen?     Evidently    from  the  public  docu- 
ments submitted  to  him,  namely,  from  the  acts  of  the  case 
sent  him  by  the  judge  "  a  quo,"  or  from  the  authentic  copy 
of  the  sentence  forwarded  to  him  by  the  appellant.     All 
this   is  expressly  enacted  by  Pope  Benedict  XIV.,  in  his 
Const,  ad  Militant  is,  which  is,  word  for  word,  to  be  regarded 
as  our  law,  in  these  words  :  "  Appellationes  (i.e.,  in  suspen- 

1  Schmalzg.,  1.  2,  t.  28,  n.  87. 


Appeals.  2 1 1 

sivo)  autem  non  recipiantur,  neque  inhibitiones  vigore  il- 
larum  concedantur,  nisi  prius  constiterit,  quod  nedum  per 
legitimam  personam,  et  intra  legitima  tempore  vere  appella- 
tum  fuerit ;  sed  etiam,  quod  appellatum  fuerit  a  sententia 
definitiva,  vel  habente  vim  definitivEe,  aut  a  gravamine  quod 
per  definitivam  sententiam  reparari  non  possit :  idque  per 
publica  documenta,  quas  realiter  in  Actis  exhibentur.  Tune 
enim,  et  non  antea,  judici,  ad  quern  appellatum  fuerit,  in 
causa  se  intromittere,  liceat."1  The  same  is  enacted  also  by 
the  decree  ad  tollendas  of  the  S.  C.  EE.  et  RR.,  1600,  §  III., 
which  decree  is  re-enacted  in  the  Const,  ad  Militantis,  §  45. 

507.  Observe  it  is  here  expressly  decreed  that  the  judge 
"  ad  quern  "  shall,  before  admitting  the  appeal,  ascertain,  by 
the  inspection  of  public  documents,  that  the  appeal  is  from  a 
final  sentence,  etc.  These  public  documents  consist,  as  we 
have  seen,  in  the  acts  of  the  case  transmitted  by  the  judge 
"  a  quo,"  or  also  in  the  authentic  copy  of  the  sentence  for- 
warded by  the  appellant.  But  suppose  the  judge  "  a  quo  " 
fails  to  send  the  acts  of  the  case,  and  the  appellant  asserts 
that  he  has  been  refused  an  authentic  copy  of  the  sentence, 
what  is  to  be  done  ?  It  is  sufficient  for  the  appellant  to  pre- 
sent to  the  judge  "  ad  quern  "  a  simple  unauthentic  copy  of 
the  sentence  or  decree.  Whereupon  the  judge  "  ad  quern  " 
can  admit  the  appeal  "  in  suspensive,"  and  if  need  be,  issue 
inhibitions  to  the  judge  "  a  quo."  This  is  expressly  enjoined 
in  the  Const,  ad  Militantis,  §  44 :  "  Quod  si  appellans  asserat, 
sententiae  aut  Decreti  exemplum  authenticum  culpa  judicis 
a  quo,  vel  Notarii,  sive  actuarii,  habere  non  posse,  tune  sal- 
tern copiam  simplicem  sententias  seu  Decreti,  in  actis  pro- 
ducere  teneatur,  ejusque  tenori,  in  literis  inhibitorialibus  in- 
serto  adjicienda  erit,  prout  adjici  volumus  et  mandamus,  in 
earum  corpore  expressa  conditio :  Quatenus  tamen  tenor 
insertus  vere,  et  in  substantialibus  cum  Originali  concordet, 


!  §43- 


2 1 2  Appeals. 

eodemque  Original!   prassentes  literas  sint  in  tempore  pos- 
teriores,  alioquin  nullas,  et  irritse  censeantur." 

508.  In  order  to  understand  the  rights  and   duties  of  the 
judge  "  ad  quern  "  more  fully,  it  is  necessary  to  bear  in  mind 
that  appeals  are  either  judicial  or  extrajudicial ;  that  judicial 
appeals  are  subdivided  into  those  which  are  made  against  (a) 
a  final  sentence,  (ft)  or  an  interlocutory  sentence  having  the 
force  of    a   final   sentence,  (c]  or  inflicting    an  irreparable 
gravamen. 

509.  When  a  judicial  appeal   is   made  to   the  judge  "  ad 
quern  "  against  a  final  sentence  or  an  interlocutory  decision, 
which  is  equivalent  to  and  therefore  has  the  force  of  a  final 
sentence,  the  duty  of  the  judge  "  ad  quern  "  is  simply  to  in- 
spect the  public  documents  submitted  to  him,  namely,  the 
acts  of  the  case   forwarded  by  the  judge  "  a  quo  "  or  the 
copy  of  the  sentence  transmitted  by  the  appellant,  and  to 
see  whether  the   decision  complained  of  in  the  appeal  is 
really  a  final  or  quasi-final  sentence.     As  soon  as  he  finds 
that  the  sentence  is  final  or  quasi-final,  he  can  and  should 
at  once  admit  the  appeal,  and  notify  the  appellant  to  appoint 
his  advocate  within  thirty  days.     He  can  also  forthwith,  if 
need  be,   issue  the  inhibitions  to  the  judge  "  a  quo "  and 
revoke  all  attentates.     Hence,  in  making  this  kind  of  appeal 
the  appellant  need    not  express,  either  to  the  judge  a  quo  or 
judge  ad  quern,  the  grievance  or  cause  on  account  of  which 
he  appeals.     All  that  he  need  say  is  that  he  appeals  from 
such   or  such   a   sentence.     Nor  is  the  judge  "  ad  quern  " 
obliged  to  examine  whether  there  is  reasonable  cause   or 
ground  for  appealing.     See  our  Elements,  Vol.  II.,  n.  1215. 

510.  But  when  an  appeal  is  made  against  an  interlocutory 
decision    which  it  is  claimed  by  the  appellant    inflicts  an 
irreparable  grievance,  the  case  is  somewhat  different.  Here  the 
judge  "  ad  quern  "  must  ascertain  from  the  public  documents 
submitted,  namely,  the  acts  of  the  case,  or  the  authentic  copy 
of  the  decree,  or  in  default  of  these,  a  simple  unauthentic  copy 


Appeals.  2 1 3 

of  the  sentence — first,  that  the  grievance  alleged  to  have  been 
inflicted  by  the  intermediate  decision  is  "  de  jure  "  an  irrep- 
arable one — i.  e.,  one  which  the  law,  either  expressly  or 
tacitly,  regards  as  irreparable ;  second,  that  the  grievance 
has  been  in  reality  inflicted.  Hence,  also  the  person  who 
appeals  against  such  interlocutory  sentences  must,  in  his 
letter  of  appeal  to  the  judge  "  ad  quern,"  state  (a)  the  cause 
of  his  appeal — i.e.,  he  must  name  the  grievance  ;  (b)  he  must 
show  that  the  law,  either  expressly  or  tacitly,  regards  it  as 
an  irreparable  one  ;  (c)  he  must  also  prove  that  it  was  really 
inflicted. 

511.  When  the  judge  "  ad  quern  "  finds  and  decides  that 
the  interlocutory  grievance  in  the  case  subsists  in  law  and  in 
fact — i.e.,  has  been  really  inflicted  and  is  one  of  those  con- 
templated in  law  as  irreparable,  the  whole  case,  that  is,  not 
only  the  interlocutory  grievance,  but  also  the  entire  main 
cause  itself,  devolves  upon  him,  in  such  a  manner  that  the 
jurisdiction  of  the  judge  "  a  quo  "  becomes  suspended,  and 
he  cannot  proceed  any  farther  in  the  case.1 

512.  Finally,  when  the  appeal  is  interposed  against  an  extra- 
judicial  act  or  grievance,  it  is  necessary  to  distinguish  be- 
tween those  grievances  which  inflict  an  irreparable  grava- 
men— i'.g.,  the  threat  of  inflicting  a  censure — and  which  con- 
sequently admit  of  a  suspensive  appeal,  and  those  which  do 
not  inflict  an  irreparable  grievance  and  therefore  admit  only 
of  a  devolutive  appeal,  namely,  the  cases  enumerated  in  the 
Const,  ad  Militantis  of  Benedict  XIV.     Now  the  judge  "  ad 
quern  "  cannot  admit  a  suspensive  appeal  interposed  against 
an  alleged  irreparable  extrajudicial  grievance,  until  after  he 
has  inspected  the  acts  or  documents  of  the  case,  and  ascer- 
tained from  them  that  the  grievance  has  really  been  inflicted 
and  is  irreparable.     For  this  purpose  he  can  and  should  ask, 
and  if  need  be,  order  the  judge  or  superior  "  a  quo  "  to  send 

1     Cap.  59  de  app. ;   Ruff.,  1.  2,  t.  28,  n.  235. 


214  Appeals. 

him  the  acta  of  the  case,  and  meanwhile  forbid  him  to  proceed 
any  farther  in  the  case.  This  is  expressly  ordained  by  Pope 
Benedict  XIV.  in  his  Const,  ad  Militantis?  which  is  at  present 
obligatory,  also  with  us.  The  words  of  the  Constitution 
(§  45)  of  the  immortal  Pontiff,  are :  "  Cum  vero  a  gravamine, 
quod  per  definitivam  reparari  nequit,  appellatum  fuerit  .  .  . 
ubi  agatur  de  censuris  jam  prolatis,  vel  de  cumminatione 
carcerationis,2  Torturas,8  aut  censurarum,  obsevetur  omnino 
dispositio  Decretorium  Congregationis  Episcoporum  sub 
rec.  mem.  Clemente  VIII. ,  juxta  additiones,  et  declarationes 
piae  mem.  Benedict!  XIII." 

513.  The  decrees  of  the  S.  Congregation  of  Bishops  and 
Regulars  here  referred  to,  are : 

"  VIII.  In  causis  vero  Visitationis  Ordinariorum  aut  cor- 
rectionis  morum  appellationes  quoad  effectum  devolutivum 
tantum  admittantur,  nisi  de  gravamine  per  definitivam  irre- 
parabili  agatur  ;  vel,  cum  Visitator,  citata  Parte,  et  adhibita 
causae  cognitione,  Judicialiter  procedit :  tune  enim  appella- 
tioni  locus  erit,  etiam  quoad  effectum  suspensivum." 

"  IX.  Cum  a  gravamine,  quod  per  definitivam  reparari 
nequit,  ut  indebitae  carcerationis  vel  torturae,  aut  excommu- 
nicationis,  etiam  comminatas,  appellatur :  nonnisi  visis 
actis,  ex  quibus  evidenter  appareat  de  gravamine,  appellatio 
admittatur,  aut  inhibitio  vel  provisio  aliqua  concedatur." 

The  additions  and  declarations  of  Pope  Benedict  XIII., 
mentioned  in  §  45  of  the  Constitution  ad  Militantis  are  given 
in  the  additions  ad IX.  Decrctum,  and  quoted  by  us  below. 

514.  We  have  said,  has  been  really  inflicted  and  is  irreparable  ; 
for,  the  question  as  to  whether  the  grievance  has  beenjustfy 

1  §  45  ;  Decr.S.  C.  EE.  et  RR.,  1600,  $  ix.;  Add.  Bened.  XIII.  ad  ix.  Deer. 

2  Ecclesiastical  imprisonment  is  not,  strictly  speaking,  in  vogue  with  us.     We  say, 
strictly  speaking  ;  for  confinement  in  a  monastery,  which  is  equivalent  to  carceratio, 
may  be  and  is  in  use  with  us. 

3  Torture  proper  is  now  out  of  use,   in  ecclesiastical  proceedings,  almost   every- 
where. 


Appeals.  2  1  5 

inflicted  or  not,  that  is,  the  question  whether  the  offence  or 
cause  for  which  it  was  inflicted  was  really  committed,  and  if 
so,  whether  it  was  sufficiently  grave  to  warrant  the  grava- 
men, is  reserved  for  the  consideration  of  the  judge  "  ad 
quern  "  after  he  has  admitted  the  appeal,  and  which  is  de- 
cided by  him  only  after  the  appeal  has  been  tried  and  when 
final  sentence  is  to  be  pronounced  upon  the  merits  of  the 
case  appealed. 

515.  Before  admitting  an  extrajudicial  appeal  which  has 
merely  a  drcohttive  effect,  the  judge  "ad  quern"  should  in- 
deed be  certain  that  the  case  appealed  to  him  is  one  that 
admits  of  such  appeal,  but  it  is  not  prescribed  that  he  must 
derive  this  certainty  from  the  Act  a  of  the  cause,  or  other 
public  documents,  as  in  the  case  of  suspensive  appeals.  All 
this  will  be  better  understood  by  a  glance  at  the  formulas 
of  appeals  against  interlocutory  sentences  and  irreparable 
grievances,  as  given  in  Pellegrino,  p.  262,  and  Bouix,  de 
Jud.,  Vol.  II.,  p.  594,  599, 


§  2.  Inhibitions. 

516.  As  soon  as  the  metropolitan  or  judge  "ad  quern" 
has  ascertained,  by  a  simple  summary  and  extrajudicial  in- 
spection of  the  above  public  documents,  or  of  a  simple,  un- 
authentic  copy  of  the  sentence,  or  decree  where,  owing  to 
the  fault  of  the  judge  "  ad  quo,"  the  public  documents  can- 
not be  had,  that  the  sentence  or  decree,  against  which  the 
appeal  is  interposed,  is  really  final  or  an  interlocutory  de- 
cree which  has  the  force  of  a  final  sentence,  or  inflicts  an 
irremediable  grievance,  or  is  an  extrajudicial  irreparable 
gravamen,  he  can  forthwith  issue  inhibitions  (inhibit  ioncs, 
litterce  inhibitorialcs)  to  the  judge  "  a  quo,"  forbidding  him 
to  proceed  any  farther  in  the  case,  or  to  execute  his  sentence 
or  decree.1  Nay,  he  has  not  only  the  right,  but  also  the 

1  Cap.  Romana  3,  de  app.  in   6C,  §3614;    Cf.    Schmalzg.,    1.2,   t.   28,    n.    100. 


2 1 6  Appeals. 

duty  and  obligation  of  sending  this  prohibition,  whenever  the 
appellant,  in  the  above  cases,  fearing  lest  the  judge  "  a  quo," 
notwithstanding  the  suspensive  appeal  interposed,  will  pro- 
ceed further  in  the  case,  and  therefore  petitions  the  judge  "  ad 
quern  "  to  issue  the  inhibitions.1  From  this  it  will  be  seen  that 
the  same  conditions  which  authorize  the  judge  "  a  quern  " 
to  receive  the  appeal  "  in  suspensive,"  empower  him  also 
to  grant  the  inhibitions.  This  is  plainly  laid  down  in  the  Con- 
stitution ad  Militantis  of  Benedict  XIV.  §  43,  44,  as  follows : 
"  Appellationes  (in  suspensive)  autem  non  recipiantur,  nequc 
inhibitiones  vigore  illarum  concedantur,  nisi  prius  constiterit, 
quod  nedum  per  legitimam  personam,  et  intra  legitima  tem- 
pora  vere  appellatum  fuerit :  sed  etiam,  quod  appellatum 
fuerit  a  sententia  definitiva,"  etc. 

517.  When  there  is   question  of  an  appeal  from  an  extra- 
judicial  gravamen,  which  is  irremediable — v.g.,  the  threat 
of  the  Ordinary  to  inflict    a  censure  upon  a  subject — the 
judge  "  ad  quern  "  can  admit  the  appeal  and  issue  the  inhibi- 
tions only   visis  actis — i.e.,  only  after  he  has  inspected   the 
public  and  authentic  acts  or  proceedings  of  the  superior  "  a 
quo."      Thus  the  Decree  of  S.  C.  EE.  et  RR.    1600,   which 
Pope  Benedict  XIV.  "  re-enacts,  says  : 3    "  Cum  a  gravamine 
quod  per  definitivam  reparari  nequit,  ut  excommunicationis 
etiam  comminatas,  appellatur  nonnisi  visis  acti  sex  quibus 
evidenter  appareat   de    gravamine,    appellatio    admittatur, 
ant  inhibitio  vel  provisio  aliqua  concedatur." 

518.  For  this  purpose,  the  judge  "  ad  quern  "  has  the  right 
to  compel  the  judge  "  a  quo  "  to  forward  him  the  Acta- 
Thus  Pope  Benedict  XIII.  ordained  in  the  Roman  Council, 
held  in  1725  :  "  In  causis  vero  comminatce  .  .  .  excommuni- 
cationis, sanctitas  sua  declarat  et  mandat,  ut  non  expedian- 
tur  inhibitiones  generates  indefinitse,  scdtantnm  compulsoriales 
pro  transmissionc  copice  actoruin,  ad  effectum  cognoscendi  an 

1  Bouix,  <le  Jud.,  vol.  ii.,  p.  287.         "•  Const,  ad  Militantis,  §  45.         3  §  IX. 


Appeals.  217 

sit  deferendum  nee  ne  appellation!,  adjuncta  in  dictis  litteris 
compulsorialibus,  inhibitione,  ut  interim  judex  a  quo  ad 
ulteriora  non  procedat."  *  This  law  is  re-enacted  by  Pope 
Benedict  XIV.,  in  his  Constitution  ad  Militantis,  §  45. 

519.  Q.  In  what  manner  should  the  metropolitan  or  judge 
"  ad  quern  "  issue  the  inhibitions,  also  in  the  United  States  ? 

A.  He  is  bound,  on  pain  of  nullity  of  his  proceedings,  to 
insert  in  his  inhibitory  letters  the  tenor  of  the  authentic 
copy  of  the  final  sentence,  or  of  the  interlocutory  decree 
having  the  force  of  a  final  sentence  or  inflicting  an  irreme- 
diable gravamen.  Where  the  appellant  asserts  that  an 
authentic  copy  was  refused  by  the  judge  "  a  quo,"  it  will  be 
sufficient  for  the  judge  "  ad  quern  "  to  insert  in  the  inhibitory 
letters  the  tenor  of  the  simple — i.e,  unautJicntic  copy  of  the 
sentence  or  decree,  though  he  must  add,  at  the  same  time, 
the  following  clause  :  "  Quatenus  tamen  tenor  insertus  vere, 
et  in  substantialibus  cum  Originali  concordet,  eodemque 
Originali  prassentes  litterse  sint  in  tempore  posteriores ; 
alioquin  nullee  et  irritas  censeantur."  * 

520.  The  object  of  these  precautions  is  to  prevent  the 
judge  "  ad  quern  "  from  being  misled  by  the  appellant  into 
issuing  inhibitions  in    cases    where  the   appeal  is  not  sus- 
pensive.    For  it  is  plain  that  where  the  appeal  is  only  de- 
volutive — v.g.j  in  the  judicial  and  extrajudicial  cases    enu- 
merated in  the  Const,  ad  Militantis — and  where,  consequently, 
the  judge  "  a  quo  "  can  execute  his  decree  or  sentence,  pend- 
ing the  appeal,  the  judge  "  ad  quern  "   cannot  issue  inhibi- 
tions forbidding  him  to  proceed  any  further  in  the  case. 
However,  even  in  appeals  which  are  merely  devolutive  and 
not    suspensive,    if    the    judge    a  quo  threatens   something 
which  interferes  directly  with  the  appellant's  appeal — v.g., 
if  he  threatens  to  punish  him  for  daring  to  appeal,  or  if  he 
thwarts  the  appeal  and  interposes  obstacles  in  the  way  of 

1  Add.  ad  deer.  ix.    Clem.  VIII.  -  Const,  ad  Militantis,  $  44. 


2 1 8  Appeals. 

the  appellant's  prosecuting  the  appeal,  the  judge  ad  qucm 
can,  nay,  if  requested  by  the  appellant,  should  issue  inhibi- 
tions, forbidding  the  judge  a  quo  to  do  anything  which 
stands  in  the  way  of  the  appeal.  For  where  the  law  gives 
a  person  the  right  to  appeal"  in devolutivo,"  it  also  gives  him 
'*  eo  ipso  "  the  right  to  take  the  necessary  steps  to  prosecute 
that  appeal,  and  imposes  upon  the  judge  ad  qucm  the  duty 
to  protect  him  in  the  exercise  of  these  rights. 

§  3.  Attentates. 

521.  The  inhibitions,  of  which  we  have  just  spoken,  are 
issued  in  order  to  prevent  the  judge  a  quo  from  taking  any 
steps  prejudicial  to  the  appellant,  and  therefore  presuppose 
that  he  has  not  yet  taken  these  steps.     We  now  come  to  the 
remedy,  by  which  such  prejudicial  acts  or  steps,  ivlicn  actual- 
ly inflicted,  after  the  appeal  has  been  interposed,  are  reversed. 
Every  appeal  which  is  interposed  against  a  final  sentence, 
or  an  interlocutory  sentence  having  the  force  of  a  final  sen- 
tence or  inflicting  an  irreparable  grievance,  or  against  an 
irremediable  extrajudicial  grievance,  suspends,  as  we  have 
seen,  the  jurisdiction  of  the  superior  a  quo,  in   regard  to  the 
case  or  grievance  against  which  the  appeal  is  lodged  ;    and 
consequently,  such  appeal  strips  him  of  all  power  to  proceed 
any  further  in  the  case,  or  execute  his  sentence,  pending  the 
adjudication  of  the  appeal.     Hence  the  law  of  the  Church, 
as  still  in  force,  also  with  us,  decrees  that  if  the  judge  a  quo, 
notwithstanding  such  appeal,  proceeds  in  the  case  or  does 
anything  whatever  which  is  injurious  to  the  appellant,  his 
acts  are  to  be  looked  upon  as  attentates  (at  tent  at  a) — i.e.,  as 
vain  and  futile  attempts,  and  are  ipso  jure  null  and  void,1  and 
must  be  revoked  before  all  else.2 

522.  Q.  By  what  judge  or  superior  are  attentates  to  be 
revoked  also  in  the  United  States  ? 

1  Cap.  I.  utlite  pend.  etc.  in  6-  (ii.  7).  -  Cap.  7,  de  app.  in  6C. 


Appeals.  2 1 9 

A.  By  the  superior  or  judge  "  ad  quern  " — i.e.,  to  whom  the 
appeal  has  been  made.  For  such  attentates  imply  a  con- 
tempt of  his  authority.  In  reality,  when  a  suspensive  ap- 
peal is  made,  the  case  devolves  eo  ipso  to  the  judge  ad  qncm 
in  such  a  manner  that  he  alone  can  proceed  farther  in  the 
case.  The  hands  of  the  judge  a  quo  are  tied.  Consequently, 
if  the  latter,  nevertheless,  proceeds  in  the  case,  he  clearly  de- 
spises the  authority  of  the  judge  ad  quern? 

523.  Q.  What  is  required  in  order  that  the  attentates,  per- 
petrated after  a  suspensive  appeal,  can  and  should  be  re- 
voked also  in  the  United  States  ? 

A.  A  distinction  is  to  be  made  between  final  sentences 
and  interlocutory.  When  the  appeal  is  against  a  final  sen- 
tence, or  an  interlocutory  sentence  having  the  force  of  a  fi- 
nal sentence,  the  judge  "  ad  quern  "  can  and  should  reverse 
the  attentates,  before  all  else,  as  soon  as  the  appellant  has 
shown  (a)  that  a  final  or  quasi-final  sentence  was  passed,  (b) 
that  he  appealed  from  it,  (c)  that  attentates  took  place. 
When  the  appeal  is  made  against  an  interlocutory  sentence 
which  inflicts  an  irreparable  gravamen,  or  against  an  extra- 
judicial  irremediable  grievance,  the  judge  ad  quern  can  and 
should  reverse  the  attentates,  after  he  has  ascertained  that 
the  sentence  or  act  is  really  one  that  inflicts  an  irremediable 
grievance,  as  shown  above.2 

524.  What  has  been  said  thus  far  concerning  attentates, 
applies,  strictly  speaking,  only  to  appeals,  judicial  or  extra- 
judicial,  which   have  a   suspensive  effect.     We  say,  strictly 
speaking  ;    for,  as  we    have  seen,  in  speaking  of  inhibitions, 
even  where  the  appeal  has  but  a  devolutive  effect,  the  judge 
a  quo  cannot,  once  the  appeal  has  been  made,  do  anything 
which  will  interfere  with  the  appellant's  right  to  continue 
and    prosecute     his   appeal.     Hence,  if  he    does   interfere 


1  Pellegr.,  P.  iii.,  Sect.  V.,  n.  12.  ;  Cf.   Leur.,  1.  c.,  q.  1136. 
'2  Cap.  7,  de  app.  in  6°.     Schmalzg.,  1.  c.,  n.  119. 


2  2O  Appeals. 

with  this  right  of  appeal,  the  judge  "  ad  quern  "  can  and 
should  revoke  such  acts. 

525.  Nay,  as  we  have  shown  above,  under  article  xxxvi., 
when  speaking  of  the  Const,  ad  Militantis,  there  may  be  cases 
which,  according  to  the  strict  letter  of  the  law,  admit  only  of 
a  devolutive  appeal,  and  which,  nevertheless,  owing  to  pecu- 
liar circumstances,  and  according  to  the  mind  of  the  sacred 
canons  of  the  Council  of  Trent,  allow  of  a  suspensive  appeal. 
When  such  an  appeal  is  made  it  becomes  the  duty  of  the 
metropolitan  or  judge  to  whom  it  has  been  interposed,  to 
consider  the  special  features  of  the  case,  and  to  admit  the 
appeal  in  suspensive  if  he  finds  the  circumstances  warrant 
it.1  As  soon  as  he  has  thus  admitted  this  appeal,  he  can 
send  inhibitory  letters  to  the  judge  or  superior  a  qtio,  pro- 
hibiting him,  not  only  from  putting  any  obstacles  in  the 
way  of  the  appeal,  but  also  from  doing  anything  further 
in  the  case  itself.  And  if  the  superior  "  a  quo  "  proceeds 
in  the  case,  notwithstanding  the  inhibitions,  all  his  acts  can 
and  should  be  revoked  as  attentates  by  the  judge  ad  qucni. 
However,  in  issuing  inhibitions  in  these  peculiar  cases,  the 
judge  ad  quern  must  be  careful  to  observe  what  is  prescribed 
by  Pope  Benedict  XIV.,  in  his  Const,  ad  Militant  is,  §  39. 
For  the  formula  of  the  decree  by  which  attentates  are  re- 
voked, see  Pellegrino,  P.  iii.,  Sect,  v.,  n.  55.  For  fuller  in- 
formation respecting  attentates,  see  our  Elements,  Vol.  I.,  pp. 
425,  427  ;  Vol.  II.,  pp.  303,  sq. 

1  Cf.  Card,  de  Luca,  de  Jud.  disc.  37,  n.  9. 


Appeals.  221 

ART.   XL. 
Extinction  of  the  Appeal. 

XL.  "  Eo  tempore  peremptorio  frustra  elapso,  censetur  reus  beneficio 
appellationis  renuntiasse,  quam  propterea  judex  gradus  superioris  per- 
emptam  declarat." 

526.  Should  the  appellant  fail  to  select  his  advocate  with- 
in thirty  days,  he  will  be  considered  as  having  renounced 
his  right  of  appeal,  unless  he  proves  that  he  was  hindered  by 
good  reasons,  from  making  the  selection.     Consequently  the 
judge  "  ad  quern  "  will  declare  the  appeal  extinct.     From 
this  it  will  be  seen,  that  the  present  article,  enacts,  that  the 
term  of  thirty  days  shall  be  peremptory  or  fatal  to  the  appeal. 
This  term  corresponds  to  what  canonists  call  the  "  tempus 
appellationis  introducendae,  sive  apostolos   Judici  ad  quern 
praesentandi,"  which  is  also  a  "  tempus  fatale  "  according  to 
the  general  law  of  the  Church.1 

527.  Here  it  may  be  asked,  whether  the  appeal, — owing  to 
the  failure  on  the  part  of  the  appellant  to  appoint  and  pre- 
sent his  advocate  to  the  judge  "  ad  quern  "  within  thirty  days, 
—becomes  extinct  ipsojure,  or  whether  a  declaratory  sentence 
is  required  ?     There  is  no  doubt  that  a  declaratory  sentence  is 
necessary.      For  the  Instructio,  in  the  present  article,  ex- 
pressly ordains  that  the  judge  "  ad  quern  "  shall  declare  the 
appeal   extinct.      Consequently  the  right  of  appeal  is  not 
forfeited  by  the  appellant  who  fails  to  present  his  advocate 
in  due  time,  until  the  judge  "  ad  quern  "  formally  pronoun- 
ces it  extinct.     The  formula  of  this  declaration  is  given  by 
Pellegrino,  Praxis  Vicariorum,  P.  II.,  Sect,   iii.,  Subs,  i.,   n. 
109. 

528.  Thus  it  will  be   seen  that  the  Instructio  has  settled 
a  question  which  was  formerly  controverted.     For,  as  may 
be  seen  in  Card.   De  Luca, 2  Pellegrino  and  other  authors, 

1  Cap.  4,  de  app. ;  Cf  Schmalzg.,  1.  2,  t.  28,  n.   70,  75. 

-  Lib.,   15,  P.  i.  De  Jud.,   Di~c.  37.  n.  27,  (Venetiis  1734.) 


222  Appeals. 

canonists  were  formerly  divided  on  the  question,  some  hold- 
ing that  the  appeal  in  the  case  becomes  extinct  ipso  jure ; 
others  requiring  a  declaratory  sentence. 

529.  Again,  prior  to  the   Instructions  of    1880,  and   1884, 
the  judge   "  a  quo  "   had   the  right   to   declare  the  appeal 
abandoned  and  therefore  extinct,  when  the  appellant  failed 
to  introduce  the  appeal  before  the  judge  "  ad  quern  "  within 
the   proper  time.1     At  present,  according  to  the  lustructio, 
the  judge  "  ad  quern  "  alone  can  make  this  declaration. 

530.  Observe  also  that  the  approval  of  the  advocate  by  the 
judge  "  ad  quern,"  is  not  included  in  the  term  of  thirty  days. 
For  this  approbation  does  not  depend  upon  the  will  of  the 
appellant,  but  on  that  of  the  judge  "  ad  quern."     It  would 
therefore  be  unjust  to  impute  any  delay  in  regard  to  such 
approval,    to  the    appellant  who    has  no  control    over   it.2 
Thus  the  law  of  the  church  says :    "  Imputari  non  debet  ei 
per  quern  non  stat,  si  non  faciat,  quod  per  eum  fuerat  faci- 
endum."    (Reg.  41,  de  Reg.  jur.  in  6°). 

531.  We  have  said,  in  the  beginning  of  this  article,  that 
the  appellant  who  fails  to  appoint  the  advocate,  will  be   re- 
garded as  having  abandoned  his  appeal,  unless  he  can  sJiow 
good  excuses  for  having  failed  to  select  the  advocate.     For 
canonists  all  teach  that  when  the  appellant  is  not  guilty  of 
culpable  negligence  in  the  case,  the  lapse  of  the  peremptory 
term  should  not  be  fatal  to  his  appeal.3     Now  what  may  be 
looked  upon  as  just  reasons  excusing  the  appellant  in  the 
case?      Chiefly,    grave    illness,  poverty,   ignorance,   wars, 
pestilence,  etc.4 

1  Xicollis,  Praxis  Can.   Tom.  i.   Lit.  A.   §  i.  n.  46. — Salisburgi,   1729. 

2  Rota,  p.  536         3  Card.   De  Luca,  1.  c.,  n.  29.  sq.  4  Ib.,  n.  29.  30.  sq. 


Appeals.  223 

ART.  XLI. 
Mode  of  Adjudicating  Appeals. 

XLI.  "  In  appellationeasententia  Curiae  Episcopalis  ad  Metropolitan- 
am  Archiepiscopus  in  causa  cognoscenda  ac  definienda,  eadem  procedendi 
methodo  utetur,  quae  in  hac  instructione  indicatur." 

§  I.  Procedure  before  the  Metropolitan. 

532.  When  the  appellant  does  not  abandon  his  appeal,  but 
presents  the  name  of  his  advocate  to  the  Metropolitan,  within 
thirty  days,  as  stated  above,  the  Metropolitan,  will  then,  as 
a  matter  of  right  and  duty,  proceed  to  hear  or  try  the  case 
appealed,  and  upon  its  conclusion,  pronounce  final  sentence, 
revoking,  amending,  or  confirming  the  sentence  of  the  low- 
er court.     The  mode  of  procedure  or  form  of  trial,  which 
the  Metropolitan  is  bound  to  observe  in  hearing  and  decid- 
ing the  case  on  appeal  is  substantially  the  same  as  that  ob- 
served in  the  trial  of  the  first  instance,  as  is  expressly  stated 
in  the  present  article  of  the  Instruction 

533.  We  shall  now  briefly  describe  this  mode  of  proced- 
ure.    As  in  the  curia  of  the  first  instance, — where  the  curia 
is  established  in  accordance  \vith  the  present  Instructio, — the 
ordinary  not  only  can,  but  is  advised  to  appoint  an  auditor 
to  conduct  the  whole  trial,  so  also  in  the  court  of  the  second 
instance, — where  the  Archbishop's  curia  is  properly  estab- 
lished,— it  is  lawful,  nay,  advisable  for  the    Metropolitan   to 
commit  the  hearing  or  trial  of  the  appeal  to  an  auditor — i.e., 
to  a  worthy  ecclesiastic,  learned  in  the  law  of  the  Church.2 
The  functions  of  this  auditor  are  substantially  the  same  as 
those  of  the  auditor  of  the  judex  a  quo,  whose  duties  have 
been  already  fully  explained  by  us.     Where  the  Metropoli- 
tan court  is  not  yet  properly  constituted,  and  where  conse- 
quently commissions  of  investigation  obtain  ad  interim,  by 
Papal  dispensation,  the  hearing  or  trial  of  the  case  appealed 

1  Pierantonelli,  1.  c.,  p.    159.  2  Droste,  1.  c.,  142. 


224  Appeals. 

takes  place  before  the    commission   presided  over  by  the 
Metropolitan  or  his  Vicar-general.1 

534.  The  first  step  of  the  court,  thus  constituted,  namely 
of  the  auditor,  or  as  the  case  may  be,  of  the  commission,  is  to 
issue  a  citation  to  the  appellee — i.e.,  to  the  diocesan  prose- 
cutor of  the  judge  "  ad  quern,"  and  to  the  appellant  or  his 
advocate,  notifying  them  that  it  will  proceed  to  the  hearing 
or  trial  of  the  case  appealed  on  the  day  and  at  the  place 
named  in  the  citation,  and  summoning  them  to  be  present. 
On   the  appointed  day,  all  the   acts  or  documents  of  the 
first  instance,  as  sent  by  the  judge  a  quo  to  the  judge  ad  qucin, 
are  opened  by  the  judge  ad  quern  in  the  presence  of  both  the 
appellant   or  his  advocate,  and  the  procurator  fiscalis  of  the 
judge  ad  quern,  who  represents  and  defends  the  appellee  or 
the    curia    against    which    the  appeal   has    been    lodged.  2 
Moreover  all  other  statements  or  allegations  bearing  upon 
the  appeal,  whether  made  by  the  appellant  or  the   appellee, 
are  communicated  to  the  adverse  party,  so  as  to  enable  it  to 
disprove  or  answer  them.3 

535.  At  this  stage  of  the  proceedings,  the  appellant  and 
appellee  can  interpose  both  dilatory  and  peremptory  excep- 
tions.    When  these  exceptions  have  been  discussed  and  de- 
cided, the  judge  ad  quern— i.e.,  the  Metropolitan  or  his  audi- 
tor, or,  as  the  case  may  be,  the  commission  of  investigation, 
proceeds  to  the  next  stage  of  the  trial  of  the  appeal,  which 
consists  in  this,  that  he  fixes  a  term  or  day,  on  which   both 
parties  must  successively  present  their  proofs,  such  as  wit- 
nesses, document,  etc.,  before  him.     The  witnesses  are  ex- 
amined by  the  auditor  or  commission  in  the  same  manner, 
as  on  the  first  trial,  that  is,  under  oath, 4  one   by    one,  etc. 
For  the  manner,  in  which  the  appellant  submits  and  proves 
his  grievances,  and  the  appellee  answers  them,  see  our  Ele- 
ments Vol.  II.,  n.  1220  sq. ;  n.  1232  sq. 

1  Instr.  art.  XVII.  *  Pellegr.,  1.  c.,  Part.,  3.   Sect.  4.   n.   I. 

3  Ib.,  n.  4.  *  Cap.  Fraternitatis  17  de  test.  (ii.  20). 


Appeals.  225 

536.  This  term  or  delay  is  called  terminus  ad  non  posita 
ponendum,  ct  non  probata  probandum,  because  it  is  granted  for 
the  purpose  of  enabling-   the   appellant   (a)  to   submit  and 
prove  by  witnesses  etc.,  in  the  second  instance,  whatever 
allegations  or  proofs  he  failed,  either  through  ignorance  or 
negligence,  or  other  cause  to  produce  at  the  first  trial  (ad 
non  posita  poncnduni),  and  (b)  to  produce  additional  or  new 
proofs  in  support  of  matters  or  grievances,  which    were  al- 
leged indeed  on  the  first  trial,  but  not  proven,  or  only  insuf- 
ficiently proven    (ad  non  probata  probandunt).     For,   as  we 
show  in  our  Elements  of  Ecclesiastical  Law,  Vol.  II.,  Nos. 
1223  sq.     An  appellant  has  the  full  right  to  bring  in  any 
new  matter,  (and  of  course,  also  prove  it  by  new  testimony, 
such   as  witnesses,  whether  already  examined  at  the  first 
trial  or  not,)  which  was  not  produced  by  him  at  the  first 
trial,  provided  it  arises  from,  or  has  any  bearing  upon  the 
cause  as  tried  in  the  first  instance.     He  can  also  produce  ad- 
ditional proofs,  in  support  of  what  he  alleged  indeed  at   the 
first  trial,   but  failed  to  prove  sufficiently.1     The  appellee 
has  of  course  the  same  right  in  his  reply.     (See  our  Elements 
Vol.  II.,  n.  1220  sq. ;  Ib.  n.  1230  sq.) 

537.  From  what  has  been  said,  it  follows  that  the  term  ad 
non  posita  etc.,  is  a  substantial  term,  and  must  therefore  be 
granted  to  the  appellant  on  pain  of   the  proceedings,  also 
with  us,  unless  he  renounces  it.     The  appellant  may,  if  he 
choses,  give  up  the  right  to  avail  himself  of  this  term  to  pro- 
duce additional  evidence — v.g.,  because  he  says  he  has  noth- 
ing to  add  to  what  he  has  already   submitted  at  the  first 
trial,  and  is  contained  in  the  acts.2     If  he  does  so,  the  judge 
ad  quern  can  forthwith  proceed  to  pass  sentence,  after  hav- 
ing examined  the  acts  of  the  first  instance,  unless  he  himself 
finds    it   necessary  to    obtain  more  light  on  the  case.     In 


1  Cap.  Fraternitatis  cit.  ;     L.  4.  .  17.  de  temp.  app.  vii.  63.. 
•  Cap.  Pellegr.  1.  c  ,  n.  5. 


226  Appeals. 

which  latter  case  he  can  order  the  necessary  investigations 
to  take  place.1 

538.  We  remark  also  that  what  has  been  already   fully 
proved  in  the  first  instance,  by  the  appellant  or  appellee, 
need  not,  nay,  should  not  be  proved  over  again  on  the  trial 
of  the  appeal.2     For  the  Metropolitan  is  not  supposed  to  try 
the  whole  case  over  again,  as  though  it  had  never  been 
tried  before,  but  rather  to  give  the  appellant  a  chance  to 
allege  what  he  failed  to  allege,  and  to  prove  what  he  failed 
to  prove  on  the  first  trial,  so  that  the  defects,  irregularities, 
injustices    and    omissions   of   the   first   trial   may   thus    be 
remedied.     Both  questions  of  law  and  fact  pertaining  to  the 
case  as  decided  in  the  first  instance,  can  be  examined  and 
discussed  anew  in  the  second  instance.3 

539.  Where,    as   is   usual,    the  parties  submit  additional 
evidence,  on  the  appeal,  the  judge  ad  qucni, — i.e.,  the  auditor 
or  commission  must  order  the  additional  or  new  testimony 
together  with  the  minutes  of  the  proceedings  to  be  pub- 
lished  or   communicated  to  the  adverse  party,4  so  that  the 
appellant  may  know  what  the  appellee  has  submitted,  and 
vice    versa.5       Either    party    can    then    submit    rebutting 
evidence,   as   we   show  more   fully   in  our   Elements,  Vol. 
II.,  Nos.  1221  sq. ;  n.  1233  sq. 

540.  When  both  the  appellant  and  the  appellee  declare  that 
they  have  no  further  evidence  to  submit,  the  auditor  pro- 
ceeds to  make  a  synopsis  of  the  proceedings.     Where  com- 
missions of  investigation  still  obtain,  these  bodies  make  up 
their  report,  at  the  end  of  the  hearing  of  the  appeal,  as  pro- 
vided by  the  Instruction  of  July  20,  1878,  §  9. 

541.  Thereupon  the  judge  ad  quem,  acting  in  accordance 
with  the  present  Instruction,  assigns  both  to  the  appellant 


1  Boaix.de  Jud,  vol.  2.  p.  605. 

-  Cap.  fraternitatis  cit;  L.  4,  C.  cit.;  Pellegr.  1.  c.  n.  7. 

3  Droste,  p.  142.        <  Bouix,  de  Jud.  vol.  ii.,  p.  605.        5  Pellegr.,  1.  c.  n.  7,  8. 


Appeals.  227 

and  appellee — i.e.,  the  procurator  fiscalis  of  the  judex  ad  quern 
a  term  for  the  summing  up,1  which,  according  to  the  Instruc- 
tion, must  take  place  in  ivriting,  not  orally,  and  in  the 
manner  described  above,  under  articles  xxxii.  and  xxxiii. 
This  term,  as  we  have  seen  is  called  terminus  ad  alleganduin 
et  diccndnm  injure  et  in  facto,  and  must  be  given  in  trials  of 
appeals  no  less  than  in  those  of  the  first  instance.2  It  is  to 
be  observed  here  that  a  correct  and  faithful  record  must  be 
kept  of  all  the  above  proceedings  by  a  secretary  or  notary 
of  the  court. 

542.  After  both  parties  have  handed  in  their  summing  up, 
the  Metropolitan  or  judge  ad  quern  fixes  a  day  for  the  sen- 
tence, and  issues  a  citation  to  the  appellant  and  appellee 
notifying   them   to    be    present   in    his   court   to    hear   the 
sentence.     On  the  day  appointed,  he  pronounces  his  sentence 
in  the  presence  of  the  appellant  or  his  advocate  and  appel- 
lee, or  prosecutor,  and   the  secretary,  in  the  manner  laid 
down  in  article  xxxiv.     From  this  sentence  it  is  allowed  to 
appeal  to  the  higher  superior,  namely,  with  us,  to  the  Holy 
See, — i.e.,  to  the  S.  C.  de  Prop.  Fide.     The  appeal  must  be 
interposed  within  ten  days,  as  in  the  first  instance.3 

543.  It  is  worthy  of  note  that  while  the  judge  a  quo  must 
alwavs  in  his  final  sentence,  condemn  or  absolve  the  accused, 
and   declare  him  guilty  or  not  guilty,  the  judge  ad  quern 
in    his  sentence   should   not  pronounce  directly  upon  the 
guilt  or  innocence  of  the  accused,  but  declare  the  justice  or 
injustice,  validity  or  nullity  of  the  sentence  of  the  judge  a 
quo.     He  should  therefore  pronounce  fuissc  bcne  appellatum 
et  male  judicatum,  or  inversely,  fuisse  male  appellatum  et  benc 

judicatum.     For  the  formula  of  the  sentence  of  the  second 
instance,  see  Pellegrino,  1.  c.  n.  18. 

1  Inst.  art.  xxxiii.  2  Pellegr.,  1.  c.,  n.  8.  3  Pellegr.,  1.  c.,  n.  8. 


228  Appeals. 

§  2.  Procedure  before  the  S.C.  de  Prop.  Fide. 

544.  If  the  metropolitan,  as  judge  of  appeal,   confirms  the 
condemnatory  sentence  pronounced  in  the  first  instance,  the 
accused  can  appeal  also  from  this  second  sentence,  and  that, 
with  us  to  the  S.  C.  de  Prop.  Fide.     For  as  we  have  seen,  it 
is  allowed  to  appeal  twice,  in  the  same  cause,  but  not  three 
times.     This  second  appeal  has  the  same  effect  as  the  first, 
namely,  either  suspensive  or  only  devolutive,  according  to 
the  rules  laid  down  above. 

545.  In   other  words,  where   the   first   appeal   produces 
merely  a  devolutive  effect,  the  second  has  also  merely  a  de- 
volutive effect.     But  where  the  first  has  a  suspensive  effect, 
the  second  appeal,  as  made  to  the  Holy  See,  has  also  a  sus- 
pensive effect.     For  as  Cardinal  de  Luca  says,  a  sentence 
obtains  the  force  of  res  judicata  and  can  therefore  be  executed, 
only  after  three  sentences  of  the  same  tenor  have  been  pro- 
nounced.1    The  words  of  the  great  jurist  are  :    "  Rei  judica- 
tas  asquipollent  ej usque  vim  habent  tres  conformes  senten- 
tiae,  lege  ulteriorem  prohibente  appellationem,  nisi  nulitatis, 
vel  injustitiae  vitium  accedat,"  - 

546.  Here  it  is  worthy  of  note,  that  while  the  accused  in 
criminal  or  disciplinary  causes,  can  appeal  from  the  decision 
of  the  metropolitan  or  judge  ad  qncin,  the  pro  motor  fiscalis  of 
the  curia  a  qua  or  first  instance  cannot  appeal  from   such 
decision,  where  it  reverses  the  condemnatory  sentence  of 
the  judge  a  quo.     The  reason  is,  that  a  defendant,  in  a  crim- 
inal cause,  if  once  absolved,  is  forever  absolved  from  the 
offence,  and  therefore  cannot   be   put   on    a   criminal  trial 
again,  for  the  offence  from  which  he  was  absolved. 

547.  This  is  expressly  enacted  in  the  law  of  the  Church, 
which  says  :  "  De   his  criminibus.  de  quibus  absolutus  est 

1  Honorius  iil.,  cap.  sua  nolns  65,  de  app.  (ii.  28^,  an.    1214;  Xicollis,  Praxis  can. 
vol.  i.  p.  62,   Salisb.  1729. 

-  Card,  de  Luca,  lib.  xv.  de  Jud.  Summa,  n.  120. 


Appeals.  229 

accusatus,  non  potest  accusatio  replicari." 1  According  to 
the  Acta  S.  Sedis,  this  is  also  confirmed  and  applied  to  our 
own  procedure  under  the  latest  Instruction,  Cum  Magnopere, 
in  the  celebrated  decision  of  the  S.  C.  C.  of  April  18,  1835, 
Mcdiolan.  In  this  case,  the  Rev.  David  A.  had  been  con- 
demned as  guilty,  by  the  curia  of  Milan,  of  breaking  his  fast 
before  saying  mass.  Against  this  sentence,  he  appealed  to 
the  S.  C.  Concilii.  This  Sacred  Congregation  reversed  the 
sentence  of  the  inferior  curia,  and  thus  absolved  David  from 
this  crime  imputed  to  him.  The  procurator  or  prosecutor 
of  the  curia  of  Milan  asked  the  S.  C.  C.  for  a  new  hearing, 
(beneficium  novae  audientiae).  The  Roman  advocate  of  David, 
however,  objected  to  the  new  hearing  being  granted,  chiefly 
on  the  ground  that  the  decision  of  the  sacred  Congregation, 
having  been  absolutory,  had  passed  at  once  into  rcsjudicata, 
and  therefore  admitted  of  no  appeal,  or  new  hearing  being 
granted  to  the  prosecution,  since  an  accused,  who  is  once 
absolved,  is  for  ever  absolved  and  therefore  cannot  be  tried  a 
second  time  for  the  same  offence.  The  Sacred  Congregation, 
by  its  resolution  of  April  18,  1885,  adhered  to  its  first  de- 
cision, and  thus  according  to  the  Acta  S.  Scdis,  confirmed 
the  above  principle.2  Hence  also,  as  the  Roman  advocate 
of  David  well  remarks,  the  Instruction  of  the  S.  C.  EE.  et 
RR.,  dated  June  n,  1880,  in  article  xxxv.  gives  the  right  to 
appeal,  in  criminal  causes,  only  to  the  accused. 

548.  The  case  is  different  in  contentious  causes,  not  of  a 
criminal  character.  In  contentious  causes  not  criminal  or 
disciplinary,  not  only  the  defendant,  but  also  the  promotor 
fiscalis  of  the  judge  a  quo  may  appeal  from  the  sentence  of 
the  Metropolitan  acting  as  judge  ad  quern? 

1  Cap.  6,  cle  ace.  (v.  i. ) 

2  Acta  S.  Sedis,  vol.  xviii.,  pp.  73,  74;  cf.  Barbosa,  Coll.  in  lib.  5,  t.  I,  cap.  6. 

3  The  mode  of  procedure  of  the  S.  C.    EE.  et   RR.    in   contentious   causes,  not 
criminal,  which   are  appealed  to  it,  is  laid  down  in  the  Regulations  enacted  by  this 
S.  C.  EE.  et  PR.  in  Sept.  1834,  and  approved  by  Pope  Gregory  XVI.    See  Bangen 
1.  c.,  p  533;  Stremler. ,  p.  596. 


230  Appeals. 

549.  Here  we  discuss  only  appeals  in  criminal  and  disci- 
plinary causes  of  Ecclesiastics,  of  which  the  Instruction  speaks 
principally  and  not  of  appeals  in  other  contentious  matters. 
How  then  are  appeals  from  the  United  States,  in  criminal 
and  disciplinary  causes,  made  to  the  S.  C.  de  Prop.  Fide  ? 
The  answer  is  indicated  in  the  Instruction  itself,  article  xxxvi, 
which  says :  "  In  appellatione  observentur  normas  .  . .  indictee 
a  S.  C.  episcoporum  et  RR.  decreto  diei  18  Decembris  1835 
et  epistola  circulari  diei  I  Augusti  1851."     The  first  of  these 
documents  lays  down  expressly  and  specifically  the  mode 
of  procedure  to  be  followed  in  appeals  to  the   Holy   See. 
The  second — namely  the   circular  of  1851,  confirms  the  de- 
cree of  1 83 5,  inculcates  anew  its  strict  and  exact  observance 
and  regulates  the  appointment  of  an  advocate  belonging  to 
the  Roman  curia  to  conduct  the  appeal  before  the  Sacred 
Congregation  at  Rome. 

550.  What  then  are  the  rules  laid  down  in    these    two 
documents,  and  applied  to  this  country  by  the  present  In- 
struction ?    The  accused  must  interpose  his  appeal  to  the 
S.  C.  de  Prop.  Fide  within  ten  days  from  the  time  he  re- 
ceives notice  of  the  sentence  pronounced  by  the  judge  of 
the   second  instance  or    the    Metropolitan.1      The    appeal 
must  be  interposed  before  the  court  of  the  second  instance. 
Thereupon,  the   archiepiscopal    curia  will  forthwith  ("  con- 
timio"~}  transmit  to  the  S.  C.  de  Prop.  Fide  all  the  acts  of  the 
whole  case,  as  decided  both  in  the  first  and  second  instances, 
namely  the  whole  trial,  its  synopsis,  the  defence  and  the 
sentence   of  the   first   and   second   instance.     The   curia   is 
obliged  to  send  the  originals,  not  copies.2 

551.  Upon  receipt  of  these  acts,  the  Sacred  Congregation 
will  inform  the  Metropolitan  of  its  acceptance  of  the  appeal, 
and  ask  him  to  notify  the  appellant  that  he  must  within  a 
fixed  time,  appoint  an  approved  advocate  of  the    Roman 

1  Decretum  S.  C.  EE.  et  RR.  1835,  §  I.,  II.,  III.  2  Decretum  cit.  $  iv. 


Appeals.  231 

curia,  to  take  charge  of  his  case  and  to  present  and  prose- 
cute his  appeal  before  the  Sacred  Congregation.1  Here  we 
see  that  while  the  metropolitan  acting  as  judge  ad  quern 
directly  notifies  the  appellant  to  appoint  his  advocate,  the 
Holy  See  on  the  other  hand  acting  as  the  court  of  the  third 
and  last  instance,  conveys  this  notification  to  the  appellant, 
not  directly,  but  through  the  lower  court.'  It  will  also  be 
seen,  that  the  appointment  of  the  advocate  by  the  appel- 
lant is  the  first  step  by  which  the  appeal  is  introduced  to 
the  judge  ad  quern,  not  only  in  the  second,  but  also  in  the 
instance — i.e.,  before  the  Sacred  Congregation.  If  the  ap- 
pellant fails  to  designate  his  Roman  advocate  within  the 
time  fixed  without  alleging  sufficient  excuses  and  nobody 
appears  before  the  Sacred  Congregation  to  prosecute  the 
appeal,  it  will  be  assumed  that  the  appellant  has  renounced 
his  right  of  appeal.  The  Sacred  Congregation  will  issue  a 
formal  declaration  to  that  effect.3 

552.  Before  making  this  declaration,  however,  the  Sacred 
Congregation  usually  prefixes  a  suitable  term,  sometimes  of 
six  months,  and  sometimes  even  of  fifteen  months,  thus  giv- 
ing the  appellant  ample  time  to  excuse  the  non-appointment 
of  the  advocate,  within  the  proper  time,  and  also   to  prose- 
cute his  appeal.4 

§  3.  How  the  Sacred  Congregation   hears  and  decides  appeals. 

553.  What  has  been  said  thus  far,  relates  to  the  interposi- 
tion and  introduction  of  the  appeal.     We  come  now  to  the 
manner  in  which  the  Sacred  Congregation  de  Prop.  Fide, 
hears  and  decides  the  appeal.     Speaking  in  general,  the  S. 
C.  de  Prop.  Fide,  like  the  other  Sacred  Congregations  pro- 
cess judicially,  though  only  by  a  processus  summarius,  in  de- 
ciding contentious  matters,  whether  civil  or  criminal.    Hence 
the  point  at  issue  between  the  contending  parties  is  fixed  be- 

1  Litterse  Circ.  S.  C.  EE.  et  RR.  Aug.  1851,  2  Decretum  1835.  $  V. 

1  Litt.  Circ.  1851.  *  Decretum  1835,  §  VI.  ;  Droste  p.  146. 


232  Appeals. 

forehand,  in  the  form  of  a  dubium  or  of  dubia.  Under  the  form 
of  this  dubium,  which  is  afterwards  proposed  to  the  Sacred 
Congregation,  the  whole  case  is  decided.  This  dubium  is 
framed  or  agreed  upon  by  both  the  contending  parties  or 
their  procurators  or  advocates ;  or  in  case  they  fail  to  do  so, 
by  the  secretary  of  the  Sacred  Congregation,  or  his  assessor. 
Hence  it  will  be  seen,  that  the  agreeing  upon  this  dubium 
takes  the  place  of  the  litis  contestatio.  The  allegations  or 
defences  of  the  parties  are  always  admitted,  nay,  if  one,  or 
both  of  the  contending  parties  is  remiss  in  the  matter,  or 
contumacious,  the  arguments  or  defence  of  said  party  is 
made  ex  officio  by  an  official  of  the  Congregation,  so  that 
the  latter  always  decides  with  full  knowledge  of  the  case.1 
The  Sacred  Congregation  always  pronounce  sentence,  by 
saying  affirmative  or  negative,  etc.,  without  giving  the  reasons 
for  their  decisions,  since  they  represent  the  person  of  the 
Supreme  Pontiff.2 

554.  All  the  Roman  Congregations,  excepting  only  the 
Congr.  S.  Officii,  conduct  their  judicial  proceedings  in  forma 
publica,  at  least,   as  a  rule.     We  say,  as  a  rule ;    for  some- 
times, owing  to  the  persons  involved  or  the  nature  of  the 
cause,  these  proceedings  are  conducted  secretly,  that  is,  in 
such  a  manner,  that  the  Cardinals  who  are  the  judges,  and 
others  who  take  part  in  the  proceedings,  are  bound  to  se- 
crecy, by  command  of  the  Pontiff.3 

555.  Finally,  we  observe,  that  all  contentious  matters  which 
are  appealed  to  any  of  the  Sacred  Congregations,  belong  to 
the  full  Congregation,  and  cannot  be  decided  by  its  Card- 
inal-prefect independently  of  the  full  Congregation.     Only 
extrajudicial  or  non-contentious  matters  of  minor  import, 
and  which  do  not  affect  the  rights  of  a  third  party,   can  be 
expedited  by  the  Cardinal-prefect,  and  need  not  be  referred 
to  the  full  Congregation.4     We  say,  of  minor  import ;  for 

'  Santi,  1.  i.,  t.  31,  n.  62.  -  Santi,  1.  c.,n.  63.  3  Ib.  4  Santi,  1.  c.,  n.  59-62. 


Appeals.  233 

even  extrajudicial  matters  must  be  referred  to  the  full  Con- 
gregation, when  they  are  of  a  grave  and  serious  nature. 
Here  we  remark  in  passing,  that  in  deciding  extrajudicial 
matters,  the  Sacred  Congregations  proceed  extrajudicially 
and  in  the  following  manner  :  after  the  recourse  or  petition 
has  been  made  to  the  Sacred  Congregation  by  the  petition- 
er, the  Congregation  writes  to  the  Bishop  or  superior  of 
the  petitioner  for  information — pro  informatione  et  voto. 
After  receiving  the  necessary  information,  it  decides  the 
matter.1 

556.  Thus  far  we  have  seen  in  general,  how  the  Sacred 
Congr.  de  Prop.  Fide,  decides  contentious  causes  appealed 
to  it.  We  shall  now  consider,  in  particular,  how  it  hears 
and  decides  appeals  made  to  it,  under  the  present  Instruc- 
tion. First,  the  Cardinal-prefect,  or  the  secretary  of  the 
Congregation,  in  the  name  of  the  Cardinal-prefect  desig- 
nates one  of  the  officials  or  consultors  of  the  Congrega- 
tion to  act  as  Reporter  (judex  rclator)  on  the  case.2  He  is 
called  judex  rclator  or  Reporter,  because  it  is  his  duty  to  re- 
ceive whatever  new  or  additional  evidence,  papers  or  docu- 
ments may  be  submitted  by  the  appellant,  and  to  report  on 
the  whole  case,  both  in  writing  and  orally  to  the  general 
meeting  of  the  Cardinals  held  for  the  purpose  of  deciding 
the  case.  From  this  it  will  be  seen  that  the  functions  of  this 
judex  relator  are  similar  to  those  of  the  auditor  or  actorum 
instructor  of  the  curia  of  the  first  and  second  instances,  as 
explained  by  us  above,  under  articles  xii.,  and  xxix.3 

!  Ib.,  n.  57,  58. 

•  In  contentious  matters  which  are  not  criminal,  one  of  the  Cardinals  themselves 
is  designated  to  report  on  the  case.  The  Cardinal  thus  designated  is  called  Car- 
dinalis  ponens  ;  he  assists  of  course  at  the  full  meeting  of  the  Cardinals,  and  casts  a 
decisive  vote  like  the  other  Cardinals.  In  criminal  causes,  the  relator  is  not  a  Car- 
dinal but  a  consultor  or  a  Prelate,  appointed  either  ad  hoc,  or  for  all  cases  in  general. 
^Bangen,  The  Roman  Curia, p.  196;  Stremler,  p.  608). 

3  Formerly  the  Secretary  of  the  Propaganda  performed  the  functions  of  the 
judex  relator. 


234  Appeals. 

557.  Consequently  if  the  appellant  or  his  advocate  wishes 
to  produce  new  proofs,  papers  or  documents,  he  must  pro- 
duce them  before  this  reporting  judge.     These  new  or  ad- 
ditional proofs  or  allegations,  as  submitted  to  the  judcx  re- 
lator,  are  then  communicated  to  the  procurator  generalis  fisci 
who  is  attached  to  the  Sacred  Congregation,  and  who  re- 
presents and  defends   the   appellee,  that   is,   the   episcopal 
curia  against  which  the  appeal  is  lodged.1     This  procurator 
can  reply  and  submit  rebutting  evidence. 

558.  When  the  appellant  or  his  advocate  and  the  appellee 
or  procurator  generalis  fisci  have  submitted  all  their  addition- 
al evidence  to  \hejudexrclator,  and  the  latter  finds  that  the 
Acta  of  the  cause  are  full  and  complete,  and  that  consequent- 
ly  no   further  evidence  is  needed,2  he  closes   the   case,  and 
proceeds  to  make  up  his  written  report  or  synopsis  of  the 
whole  case.     In  this  synopsis  (restrictus  juris  et  facti,  folium}, 
\\iejtidex  relator  or  proponent  must  be  careful  to  state  im- 
partially the  main  arguments  advanced  on  both  sides.     He 
should  not  express  any  personal  opinion  on  the  merits  of  the 
case ;  nor  should  he  lean  more  to  one  side  than  the  other. 
He  should  simply  give  a  clear  and  impartial  resume  of  the 
entire  case,  and  of  the  main  arguments  or  proofs  of  both 
sides,  and  the  legal  deductions  that  flow  from  them.3 

559.  The  appellant's  advocate  is  then  given  full  access  to 
the  entire  Acta  or  records  of  the  cause,  and  also  to  the  syn- 
opsis or  written  report  of  the  judcx  relator,  so  that  he  may 
be  able  to  prepare  the  written  summing  up  (allcgationes,  de- 
fcnsiones)  for  the  appellant.4     Having  thus  obtained  a  full 
knowledge  of  the  case,  the  appellant's  advocate  prepares  his 
written  defence  or  summing  up  of  the  whole  case.5     This 

1  Decretum  cit.  §  XI.     '2  Bangen,  The  Roman  Curb.  pp.  84.    15.  169.  170.  196. 

3  Stremler  1.  c.,  p.  606. 

4  Decretum   cit.  §.  vii;  S.  C.  EE.  et  RR.  26    Martii,   iSS6;    Acta  S.     Sedis  vol. 
19.  p.  296. 

6  According  to  a  recent  disposition   of  the  Sacred  Congregation   EE.   et  RR., 


Appeals.  235 

summing  up  is  then  printed  with  the  permission  of  the  judex 
relator  and  distributed  among  the  Cardinals  of  the  Sacred 
Congregation  some  days  in  advance  of  the  full  meeting 
which  is  to  decide  the  case.1  A  day  is  then  fixed  on  which 
the  case  will  be  proposed  and  decided  in  the  full  Congrega- 
tion of  the  Cardinals.2 

560.  The  procurator  generalis  fisci  and  thcjudf*  relator  are 
present  at  this  meeting.3     The  latter  states  the  whole  case 
to  their  Eminences,  giving  at  the  same  time  the  substance  of 
the  written  deductions  or  summing  up  of  the  appellant's 
advocate.4      The    procurator   generalis    defends    the    curia 
against  which  the  appeal  is  lodged.8     Then  the   Cardinals 
will  render  their  decision,  by  a  majority  vote.     The  judex 
relator  and  the  procurator  generalis  have  no  vote.6 

561.  Against  the  decision  of  the   Sacred    Congregation, 
there  is,  of  course,  no  appeal.     Yet  it  is  the  custom  of  the 
Sacred  Congregation  to  grant  to  the  parties  a  new  hearing 
called  revisio,  on  the  terms  indicated  in  article  xiv.  of  the 
Decree  of  the  S.  C.  EE.  et  RR.,  dated  December,  18,   i835.7 

Dated  March  26,  1886,  this  summing  up  may,  if  the  Cardinal  Prefect  thinks  it 
proper,  be  communicated  to  the  diocesan  prosecutor  of  the  curia  a  qua,  who  may 
reply  to  it  in  writing.  The  reply  of  this  prosecutor  is  communicated  by  the  j 'tide x 
relatot  to  the  appellant's  advocate,  who  in  turn  has  the  right  to  reply  in  writing. 
No  doubt  this  enactment  will  also  be  adopted  by  the  S.  C.  de  Prop.  Fide. 

1  Decretum,  1835  cit  §  vii.  etviii.  '  Ib.,  $  ix.  3  Ib. ,  $  x. 

*  Ib. ;  Cf.  Droste,  p.  147. 

6  According  to  the  decree  of  the  S.  C.  EE.  et  RR.  of  1835,  which  is  incorporated  in 
the  Instruction  Cum  Magnopcre,  the  advocate  of  the  accused  who  is  the  appellant  is 
not  allowed  to  be  present  at  this  meeting.  But  on  June  6,  1847,  the  S.  C.  EE.  et  RR., 
issued  a  decree  giving  the  advocate  of  the  accused,  or  of  the  appellant,  the  right  to  be 
present  at  this  meeting  and  to  make  an  oral  summing  up.  However  this  same 
Sacred  Congregation,  on  the  26  of  March  1886,  issued  this  disposition:  "Omnino 
autem  excluditur  Defensoris  et  Procuratoris  Fisci  praesentia  in  comitiis  Cardinal- 
ium,  quando  causa  resolvenda  proponitur."  (Acta  S.  Sedis.  vol.  xix.,  p.  296,  297, 
298). 

6  Decretum  cit.  §  xii. 

7  See  our  Elements,  vol.  ii.,  n.  1363,  sq.   where  we  show  how  and  when  this  new 
hearing  is  usually  granted. 


236  Appeals. 

Note. — All  the  above  rules  governing  appeals  to  the  Holy 
See,  from  the  sentence  of  the  metropolitan  acting  as  judge 
ad  quern  apply  also  to  appeals  from  Ordinaries  acting  as 
judges  of  the  first  instance.  For,  as  we  say  in  our  Elements, 
Vol.  I.,  n.  452.  it  is  allowed  to  pass  over  the  metropolitan 
and  appeal  directly  to  the  Holy  See  against  the  sentence  of 
one's  ordinary. 


CHAPTER  VII. 

SEVERAL  OTHER  QUESTIONS  TREATED  BY  THE  INSTRUCTION. 

ART.  XLII. 

How  the  Ordinary  is  to  Act,   when  an  Ecclesiastic  is  placed  on 
Trial  before  the   Civil  Court. 

XLII.  "Si  clericus  ob  communes  reatus  acivili  potestate  privilegio  fori 
non  obstante  processui  acjudicio  subjiciatur,  Ordinarius  summariam  in- 
formationem  criminis  assumit,  ac  inquirit,  num  ad  normam  sacrorum  can- 
onum  infamise,  irregularitati,  vel  alii  Ecclesiastics  sanction!  locus  esse 
possit. 

§  i.  Pendente  judicio  vel  imputato  in  carcere  detento  prudens  consi- 
lium  erit,  ut  Ordinarius  ordinationes  mere  provisorias  adhibeat. 

v  2.  Judicio  absoluto  si  liber  accusatus  remittatur,  curia  Episcopalis 
juxta  informationes  ut  supra  assumptas,  ea  ratione  procedat,  quas  in  hac 
instructione  constituitur. " 

562.  According  to  the  sacred  canons,1  an  ecclesiastic  is 
amenable  only  to  the  ecclesiastical  and  not  to   the  secular 
courts,  so  far  as  regards  the  punishment  of  offences  whether 
strictly  ecclesiastical  or  common,  committed  by  him.     This 
privilege,  which  is  called  privilegium  fori  was  recognized 
and  respected  in  former  days,  by  Catholic  governments. 
But  at  present,  it  is  no  longer  recognized  by  any  govern- 
ment.    In  the  United  States,  also,  ecclesiastics  are  amenable, 
by   law,  to  the  secular  courts,  for  offences  or  crimes  com- 
mitted by  them  against  the  law.3 

563.  The  Instruction,  therefore,  taking  this  fact  into  con- 
sideration, enacts  in  the  present  article,  that  when  an  ec- 
clesiastic,  notwithstanding  the  privilcgium  fori,  is  put  on 

1  Cap.  1 6,  de  Vita  et  hon.  cler.  (iii.  I) ;  cap.  25,  de  sent,  excom.  (v.  39). 
-  Our  Elements,  vol.  i.,  n.  456. 


238        Other  Questions  Treated  by  the  Instruction. 

trial  and  punished  or  imprisoned  by  the  secular  court,  for 
common  offences,  the  Ordinary  will  act  prudently,  if  he 
does  not,  as  long  as  the  case  is  before  the  secular  courts, 
take  any  decisive  steps,  but  contents  himself  with  adopting 
provisional  measures. 

ART.  XLIII, 

When  Ordinaries  should  Consult  the  Holy  See.     Nullity  of  the 

Proceedings. 

XLII.  "  In  casibus  dubiis  diversisque  in  praxi  difficultatibus  Ordinarii 
Sacram  hanc  Congregationem  consulant,  ut  contentiones  et  nullitates 
actorum  divitent." 

§  I .  Questions  addressed  to  the  Holy  See. 

564.  No  lawgiver  can  foresee  or  provide  in  his  law  for 
every  case,  or  practical  difficulty  that  may  occur.     Hence  it 
becomes  not  unfrequently  necessary  to  consult  either  the 
lawgiver  himself  for  an  authentic  explanation  of  his  law,  or 
learned  men,  for  a  doctrinal  exposition.     Accordingly,  the 
present  article  decrees,  that  when  doubts  and  practical  diffi- 
culties come  up,  the  Ordinary  shall   consult  the  Holy  See, 
in  order  that  he  may  thus  avoid  contentions  and  the  nullity 
of  the  proceedings.     In  regard  to  consultations  of  this  kind, 
see  our  Elements  of  Ecclesiastical  Law,  Vol.  II.,  n.  1370  sq. 

565.  As  a  rule,  the  Holy  See  does  not  give  official  answers 
or  authentic  explanations  to  questions  which  are   put  by 
private  per  sons,  but  only  to  those  which  are   addressed  to  it 
by   Ordinaries.     We  say,  as  a  rule ;  for  sometimes,    where 
there  are  grave  reasons,  the  Holy  See  deviates  from  this 
rule.     We  ourselves  have  received  directly  from  the  Prop- 
aganda authentic  explanations  in  answer  to  questions  (dubia) 
proposed  by  us  to  the  Sacred  Congregation. 


Other  Questions  Treated  by  the  Instruction.       239 
§  2.     Nullity  of  the  proceedings. — Complaint  of  nullity. 

566.  The   rule   of  law  is :     "  Qu<z  contra  jus  fiunt,  debent 
utique  pro  infectis  haberi."  '     Hence,  all  canonists  teach  that 
the   omission   of   a   substantial  formality  during   the   trial, 
vitiates  and  annu/s  the  entire  proceedings.     That  these  prin- 
ciples  apply   also   to   the  Instruction  is  apparent   from  the 
words  of  the  present  article — "  ut  nullitatcm  actorum  divi- 
tent,"  and  also  from  the  words  of  article  x. :  servatis  semper 
in  tot  a  sua  substantia  justitia  regidis.     When  the  trial  is  null 
by  defect  in  the  proceedings,  the  sentence  passed  after  such 
trial,  will  also  be  null  and  void,  and  of  no  effect  whatever. 
For  the  law  prescribes,  indeed,  that  the  guilty  shall  be  pun- 
ished :    but  it  prescribes  also,  that  they  shall  be   punished 
by  the  forms  of  laiv.     These  forms  are  considered   by  the 
law  essential  means  of  finding  out  the  truth. 

567.  Here   it   is   well  to  call  attention  to  the   difference 
between  unjust  and  invalid  sentences  or  acts.     As  we  have 
just  seen,  a  sentence  is  invalid  when,  for  instance,  an  essen- 
tial formality  has   been  omitted  during  the  proceedings  or 
trial ; 3  it   is   unjust,  when   there  is  either  no  crime,  or   one 
which  is  not  sufficiently  grievous  to  warrant  the  sentence.3 
From   this  it   will   be   seen,  that  a  sentence  may   be   valid 
inforo  externo  and  yet  very  unjust.     Thus,  a  person  who  is 
perfectly  innocent,  may  )^et  be  juridically  and  legally  con- 
victed of  crime.     All  the  formalities  may  have  been  scrupul- 
ously  observed   during   his  trial.     But   the   evidence   was 
false  ;  the  witnesses  were  perjured. 

568.  Having  explained  the  main  difference  between  un- 
just and  invalid  sentences,  we  shall  now  prescribe  the  reme- 
dies which  the   sacred    canons  furnish  against   both  these 
kinds  of  sentences.     Against  an  unjust  sentence,  the  appeal 
is  the  proper   means  of  redress  :      Against  an  invalid  sen- 

1  Keg.  64,  de  Reg.  Jur.  in  6.  -  Xicollis,  Praxis  Can.  vol.   I.  p.  .'41. 

3  Miinchen  ].  c.,  vol.  5  ,  p.  512,  513. 


240     Other  Questions  Treated  by  the  Instruction- 

tence,  the  complaint  of  nullity  is  the  ordinary  remedy.  We 
have  already  dwelt  at  considerable  length  upon  appeals. 
We  shall  now  say  a  few  words  on  the  complaint  of  nullity. 

569.  What  is  meant  by  the  complaint  of  nullity — qucrcla, 
oppositio  nullitatis  ?     In  how  many  ways  does  a  sentence  be- 
come null  and  void  ?     How  and  before  whom  is  the  com- 
plaint of   nullity   to   be   made  ?     For  the  answer,   see   our 
Elements,  vol.  2.  Nos.  1357  sq. 

570.  In  what  causes  can  the  complaint  of  nullity  be  made  ? 
Not  only   in   civil,  but  also   in   criminal   and   disciplinary 
causes,  and,  consequently,  also  in  the  causes  to    which  the 
Instruction  extends.1 

571.  Formalities  to   be  observed  in  making  the   complaint  of 
nullity? — i.  The  complaint  of  nullity  is  far  more  privileged 
than   the   right   of  appeal.     Thus  the  appeal,  as   we    have 
seen,  must   be   made    within   ten   days ;    the    complaint   of 
nullity  can  be  made  at  any  time  within  thirty  years  from  the 
date  of  sentence,  and,  in  some  cases,  even  for  ever. 

2.  Again,  as  we  have  seen,  a  person  condemned  cannot 
appeal,  after  three  sentences  of  the  same  tenor  (tres  sent  cut  m 
conformed)  have  been  pronounced  against  him :  whereas  he 
can  make  the  complaint  of  nullity,  even  after  three  or  more 
sentences  of  the  same  import  have  been  passed  against  him. 
For,  an  invalid  act  or  sentence  does  not  become  valid   by  a 
subsequent  sentence.     Thus  the  rule  of  law  is :     "  Non  fir- 
matur  tractu  temporis,  quod  de  jure  ab  initio    non   sub- 
sistit."  * 

3.  Moreover,  the  person  making  the  complaint  of  nullity, 
is  not  bound  to  observe  any  formality   in  making  it.     It  is 
not  required  that  he  should  state  that  he  feels  wronged   by 
the  sentence,  but  simply  that  it  is  null  and  void.8 

4.  The  complaint  of  nullity  has  a  suspensive  effect*  just 
like  appeals  proper,  except  when  it  is  made  by  a   person 

1  Our  Elements,   vol.  ii.,  n.  1356.  2  Keg.  18  de  Reg.  Jur  in  6. 

3  Munchen,  1.  c  ,  vol.  i.,  p.  588.  «  Ib. 


Other  Questions  Treated  by  the  Instruction.       241 

against  whom  three  uniform  sentences  (trcs  sententice  confor- 
mcs,}  have  been  pronounced  ;  in  this  latter  case,  it  has  mere- 
ly a  devolutive  effect.1 

5.  The  complaint  of  nullity,  like  appeals  proper,  may  be 
made  to  the  next  higher  superior — v.g.,  from  the  Bishop  to 
the  Metropolitan,  or  also  directly  to  the  Holy  See.  When 
this  higher  judge  finds  upon  due  examination  that  the 
complaint  is  well-founded,  he  pronounces  the  sentence  com- 
plained of,  null  and  void.  The  effect  of  this  declaration  of 
nullity  is  that  a  new  trial  has  to  be  given  to  the  accused  by 
the  curia  which  pronounced  the  invalid  sentence.2 

§  3.  Reinstatement. — De  in  integrum  restitution . 

572.  In  connection  with  remedies  against  sentences  and 
acts  of  the  superior,  we  shall  briefly  refer  here  to  two  other 
remedies,    namely  reinstatement  and    recourse.      What   is 
meant  by  reinstatement  (in  integrum  restitutid]  ?     When,    to 
whom,  how,  for  what  cause,  is  it  granted  ?     For  the  answer, 
see  our  Elements,  Vol.  II.,  Nos.  1374  sq. 

573.  Q.    In    what   causes    or     matters   is    reinstatement 
granted  ? 

A.  In  the  full  sense  of  the  term,  it  is  given  only  in  civil 
causes.  We  say,  in  the  full  sense ;  for  in  a  restricted  sense, 
it  is  granted  also  in  criminal  and  disciplinary  causes,  and  that 
not  only  to  minors  but  also  to  majors  or  adults,  provided 
there  is  just  cause  as  explained  in  our  Elements,  Vol.  II., 
1381.'  However,  in  criminal  causes,  it  can  be  granted  by 
the  Holy  See  only  ; 4  whereas  in  civil  causes,  it  can  as  a  rule, 
be  given  by  the  next  higher  judge,  v.g.,  by  the  Metropolitan. 

574.  Of  course,  the  reinstatement  is  granted  only  where 
it  is  not  allowed  to  make  the  complaint  of  nullity,  or  even 
to  appeal,   v.g.,  where  three   similar  sentences  have  been  al- 


1  Droste  p.   150.  *  Droste  p.  150.  3  Droste  p.  150. 

*  Munchen,  1.  c.,  vol.  i.,  p.  572. 


242      Other  Questions  Treated  by  the  Instruction. 

ready  pronounced  against  a  person.  For  the  reinstatement 
is  an  extraordinary  remedy ;  and  is  therefore  given,  only 
when  the  ordinary  remedies  are  not  available. 

Peremptory  exceptions  (exceptiones  peremptorice,  perpetua) 
are  also  a  species  of  redress  against  sentences  or  acts  of  the 
superior.  As  a  rule,  however,  they  are  made  before  the 
final  sentence  is  pronounced.  See  our  Elements,  Vol.  II.,  n. 
1026,  sq. 

§  4.  Recourse  (recursus,  supplicatio^) 

575.  Even  where  an  accused  person  who  is  condemned, 
has  no  longer  any  legal  redress  whatever;  where  for  in- 
stance, he  has  no  right  to  appeal,  or  if  he  had  it,  he  has  lost 
it  v.g.,  by  not  appealing  in  the  proper  time  ;  or  where  he 
cannot  make  the   complaint  of  nullity,  or  be  granted  rein- 
statement, he  has  still  a  last  means  of  redress — namely   the 
privilege  to  have  humble  recourse  to  the  Supreme  Pontiff, 
with  the  request  that  his  wrongs  be  righted.     This  remedy 
is  granted  not  strictly  as  a  right,  but  rather  as  a  favor,  and  ac- 
cords well  with  the  paternal  spirit  of  the  church  which  fol- 
lows the  rules  of  equity  rather  than  of  strict  justice.     We 
have  fully  described  this  remedy  in  the  present  treatise  and 
also  in  our  Elements,  Vol.  I.,  n.  443  ;  Vol.  II.,  n.  1363,  sq. 

ART.  XLIV. 

When  can  an  Episcopal   Curia  be  condemned  to  pay  costs  and 

damages  ? 

XLIV.  "  Haud  ita  facile  curiae  episcopales  ad  damna  vel  expensas  re- 
sarciendas  damnari  poterunt ;  quoties  enim  ex  processu  informative  indi- 
cia sufficientia  ad  agendum  contra  inquisitumappareant,  judex  appellatio- 
nis  a  talibus  damnationibus  abstineat,  cum  ea  indicia  sufficiant  ut  in  ju- 
dice,  qui  antea  processit,  ea  vera  et  propria  calumnia  excludatur,  quae  ad 
hujusmodi  damnationem  requiritur." 

576.  This  article  points  out,  confirms  and  applies  to  this 
country  the  general  law  of  the  Church,  as  laid  down   in  the 


Other  Questions  Treated  by  the  Instruction.       243 

sacred  canons,  concerning  those  who  falsely  accuse  others 
of  crime  before  an  ecclesiastical  judicial  tribunal.  Let  us 
now  examine  what  is  here  meant  by  false  accusation  ;  who 
are  guilty  of  it ;  what  punishment  it  entails. 

577.  I.  The  making   of   a  false   accusation   (calumnid),  as 
here  understood,  is  the  crime  by  which  a  person  knowingly 
and    maliciously    charges  another   person  falsely,    with  an 
offence  before  a  judicial  tribunal.1     We  say  crime ;  that  the 
action  in  question  is  a  crime,  nay,  a   heinous   crime   is   too 
plain  to  admit  of  discussion.     We  say  also,  before  a  judicial 
tribunal ;  for   if   a   person   accuses   another   wrongfully   of 
crime  outside  of  a  judicial  tribunal  or  court  of  justice  he    is 
indeed  guilty  of  slander  or  calumny,  but  not  of  false  accusa- 
tion, the  one  being   an   extrajudicial,  the   other   a  judicial 
calumny.2     Hence,    also,  on    account    of  the    resemblance 
between   the   two,  the  false  accusation  of  which    we   here 
speak  is  called  calumnia,  just  the  same  as  the  extra  judicial 
calumny. 

578.  II.  Who  are  guilty  of  this  crime  ?     All  those,  and  only 
those  who  knowingly  and  maliciously  accuse   another  wrong- 
fully in   an   ecclesiastical  court   of  justice.      Consequently 
those  who  make  an  accusation  wrongfully   indeed,  but  yet 
without  malice,  do  not  commit  this  crime.     However,  it  must 
be  observed  that  the  law   of   the   Church   regards  a  person 
as  a  judicial  calumniator,  and  therefore  guilty  of   malicious 
accusation,  first,  when  it  is   positively  proven — v.g.,   by  the 
calumniator's  own  judicial  confession,  or   by   witnesses   or 
other  legal  proof,  that  he  did  maliciously  make  a  wrong  ac- 
cusation ; 3  secondly,    when    he   fails  to   prove   in    court    the 
crime  which  he  has  charged  upon  a  person,  even  though  it 


1   L.  I,  ff.,  S.C.  Turpil.;Cap.  i.,  de  Cal.  (v.    2) ;  Reiff.,  1.,  5  t.  2.  n.  2. 
:  Reiff.,  1.,  c. 

:i  Such  an  accuser  is  called  calumniatorverus,  and  the  false   accusation   of   which 
he  is  guilty,  calumnia  vera.     Schmalzg.,  1.    5  *•  2-  n    r>  2>  3- 


244      Other  Questions  Treated  by  the  Instruction. 

be  not  shown  that  he  was  actuated  by  malice  or  ill-will.1 
For  a  person  who  calls  another  into  court  for  crime,  ought 
to  have  sufficient  proofs  ready,  and  not  to  rush  into  court 
without  good  and  solid  reasons  for  believing  the  accused 
guilty.  Hence,  all  persons  who  make  a  judicial  charge,  except, 
where  they  do  so  by  virtue  of  their  office,  and  who  fail  to 
prove  it,  are  by  that  very  fact,  and  without  any  further  proof 
whatever,  regarded  by  the  law  of  the  Church,  as  guilty  of 
malicious  accusation,  and  unless  they  can  legally  prove  (and 
the  burden  of  proof  lies  upon  them)  the  absence  of  malice, 
they  incur  the  same  penalties  as  though  they  had  been 
legally  shown  to  be  guilty  of  malice.3 

579.  We  say,  except  where  they  do  so  by  virtue  of  'their  office  ; 
consequently  a  diocesan  prosecutor  (pro curator  fiscalis)  who 
fails  to  establish  the  charge  preferred  by  him  is  not  pre- 
sumed by  the  law  of  the  Church  guilty  of  malicious  prose- 
cution from  the  sole  fact  of  his  having  failed  to  prove  the 
guilt  of  the  accused.  For,  the  fact  that  he  makes  the 
charge,  not  altogether  of  his  own  free  choice,  but  rather  be- 
cause he  is  obliged  to  do  so  by  virtue  of  his  office  excuses 
him  from  presumptive  calumny  (calumnia  pr&sumptd)  though 
not  from  real  or  true  calumny  (calumnia  verd)?  Hence,  in 
order  that  an  episcopal  curia,  or  ecclesiastical  judge,  or  dio- 
cesan prosecutor  can  be  regarded  as  guilty  of  malicious 
prosecution,  and  punished  accordingly, — v.g.,  obliged  to 
pay  the  expenses  of  the  trial,  and  also  damages — it  is  not 
sufficient  that  they  should  fail  to  prove  the  guilt  of  the  ac- 
cused ;  it  must,  moreover,  be  shown  that  they  were  actu- 
ated by  ill-will,  or  that  they  made  the  charge  inconsiderate- 
ly and  rashly,  i.e., — without  having  previously,  namely  in 
theflrocessus  informativus,  obtained  sufficient  proof  for  be- 

1  Such  a  one  is  styled  calumniator  prasiimptus,  and  his  accusation  calumnia  pr<r- 
sumpla, 

2  Can.  2,  3,  and  4.  Causa  ii.  Q.  iii.  ;    ReifT.  1.,  5.  t.  2.  n.  3.  sq. 

3  L.  2,  3,  4.  C.  de  delatoribus  'x.  11)  ;  Schmalzg.  1.,  c.  n.  3. ;   Reiff.  1.,  c.  n.  5. 


Other  Questions  Treated  by  the  Instruction.     245 

lieving  the  accused  guilty.  This  teaching  is  clearly  laid 
down  in  the  present  article  of  the  Instruction,  which  teaches 
that  the  judge  ad  quern  shall  not  condemn  episcopal  courts 
to  pay  the  costs  and  damages,  unless  it  appears  that  they 
put  the  accused  on  trial,  without  having  previously  obtained 
sufficient  proof  of  guilt. 

580.  III.  What  are  the  punishments  inflicted  by  the  law 
of  the  Church  upon  calumniators,  presumptive  as  well  as 
real?  i.  They  are  to  be  condemned  to  refund  to  the  ac- 
cused all  the  expenses  of  the  trial  or  proceedings,  and  also 
to  compensate  him  for  any  loss  or  damage  he  may  have  sus- 
tained.1 2.  They  incur  infamy  of  law  (infamia  Juris,'"} 
though  only  after  being  judicially  declared  calumniators.3 
3.  They  should,  even  at  present,  be  visited  with  the  pcena 
talionis*  4.  An  Ecclesiastic  who  is  guilty  of  falsely  accus- 
ing another  Ecclesiastic  should  be  deprived  of  his  benefice, 
and  exiled.5 

For  fuller  explanations  of  this  whole  subject,  see  our  Ele- 
ments of  Ecclesiastical  Law,  Vol.  II.,  Nos.  1202  sq. 

1  Reiff.,  L,  c.  n.  6;  Schmalzg.,  1.,  c.  n.  n.  *  Can.  i.  c.  2.  q.  3. 

3  Reiff.,  1.  c.,  n,  7,  8.  4  Schmalzg.,  1.,  c.  n.  12. 

5  Cap.  i,  de  caL  (v.  2)  ;  Reiff.,  L,  c.  n.  10. 


CHAPTER  VIII. 

PRESENT  STATUS  OF  OUR  RECTORS  WHO  ARE  NOT  IRRE- 
MOVABLE, UNDER  THE  INSTRUCTION 
"  CUM  MAGNOPERE." 

ART.   XLV. 

Dismissal  and  transfer  of  our  Rectors  who  are 
not  irremovable, 

XLV.  "  Concilii  Plenarii  Baltimorensis  ii.  decreta  n.  125  quoad  naturam 
missionum,  et  n.  77,  108  quoad  juridicos  effectus  remotionis  missionarior- 
um  ab  officio,  nullatenus  innovata  seu  infirmata  intelliguntur,  salvis  iis 
quae  recentius  de  Parochis  seu  Rectoribus  inamovibilibus  constitutasunt." 

§  I.  Dismissal  of  our  removable  rectors — 
Privatio   missionis,     rcmotio  dcfinitiva  a  munere. 

581.  The  present  article  points  out  the  status  which  our 
rectors  who  are  not  irremovable,  possess  under  the  present 
Instruction.  The  article  is,  with  the  exception  of  the  last 
clause — salvis  iis  etc. — which  refers  to  our  irremovable  rec- 
tors, word  for  word  the  same  as  the  declaration  issued  by 
the  S.C.  de  Prop.  Fide,  concerning  the  meaning  of  the  In- 
struction of  Jtily  20,  1878.  This  will  appear  from  these 
words  of  the  Responsum  ad  Dubia  :  "  Instructio  dei  20  Julii, 
1878,  lata  est  de  casibus,  in  quibus  ecclesiastica  poena  seu 
censura  sit  infligenda,  aut  gravi  disciplinari  coercitioni  sit 
locus.  Hinc  Concilii  Plenarii  Baltimorensis  II.  decreta  N.  125, 
quoad  naturam  missionum,  N.N.  77,  108,  quoad  juridicos  effectus 
remotionis  missionariorum  ab  officio  nullatenus  innovata  seu 
infirmata  intelliguntiir."  1 

1  Our  Elements,  vol.  2,  n.  422. 


Present  Status  of  Our  Rectors.  247 

582.  Hence  the  status  of  our  rectors,  who  are  not  irre- 
movable is  similar,  under  the  present  Instruction,  to  what  it 
was  under  the  Instruction  of  July  20,  1878.     In  other  words, 
as  under  the  Instruction  of  1878,  so  also  under  the  present 
Instruction,  these   rectors  remain  indeed  amovibiles ;  but  yet 
(a)  they  should  not  be  transferred  against  their  will  without 
grave  and  reasonable  cause ;    (b~)  nor  can  they  be  dismissed 
or  absolutely  removed  from  their  missions,  except  as  a  rule, 
in   punishment   of   crime,  and   by  trial,  as  outlined  in  the 
Instruction  Cum  Magnopere.     In  order  to  understand  this 
whole  question  better,  it  will  not  be  amiss  to  glance  at  the 
history   of  the  discipline  prevalent   in   the    United  States, 
respecting  the  removal  of  Rectors. 

583.  This  discipline  may   be  divided  into  three  periods. 
The    first    extends    from    the    earliest   beginnings   of   the 
Church  in  the  United  States,  down  to  the  year  1878.     It  is 
thus  described  by  the  Second  Plenary  Council  of  Baltimore, 
in  decree  No.  125:     "  Parochialis  juris,  paroeciae  et  parochi 
nomina  usurpando,  nullatenus  intendimus  Ecclesise  cujusle- 
bet  Rectori  jus,  ut  aiunt,   inamovibilitatis  tribuere  ;  aut  po- 
testatem  illam  tollere  seu  ullo  modo  imminuere,  quam  ex  re- 
cepta  in  his  provinciis  disciplina  habet  episcopus  quemvis 
sacerdotem  munere  privandi  aut  alio  transferendi."     Accor- 
dingly all  our  Rectors  were  amo-cibiles  during  this  period  : 
that  is,  they  could  be  definitively  removed  from  their  mis- 
sions without  a  canonical  cause  and  without  a  canonical  or 
solemn  trial,  but  not,  as  a  rule,  without  a  crime,  nor  with- 
out  a   summary    trial.     Thus,    while    the    Second    Plenary 
Council  of  Baltimore  decreed  under  Nos.  108  and   125  that 
our  Rectors  were  all  anwi'ibilcs,  it  strictly  commanded  at 
the   same  time,  under  No.  77,  that   they    could   not   be   de- 
prived of  their  missions,  in  punishment  of  crime,  without  a 
trial  before  the  Bishop  and  two  priests  acting  as  assessors 
with  a  decisive  vote.1 

1  See  our  Counter-Points  page  34. 


248  Present  Status  of  Our  Rectors. 

584.  Second  period. — On  July  20,  1878,  the  S.  C.   de   P.   F. 
issued  the  Instruction,  Quamvis,  which,  without  making  our 
Rectors  canonically  irremovable,  and  therefore  without  abro- 
gating the  Baltimore  decrees  No.  125  in  regard  to  the  nature 
of  our  missions  and  Nos.  77  and  108  respecting  the  juridical 
effects  of  dismissals,  yet  ordained  that  no  rector  whatever 
could  be  validly  dismissed  from,  or  deprived  of,  his  parish  or 
mission,  in  punishment  of  offences  without  a  trial  as  out- 
lined in  the  Instruction.     The  Instruction  then,  of  1878,  left 
all  our  Rectors  or  Pastors  amovibiles,  and  made  no  change 
in  their  status,  except  that  it  laid  down  a  more  perfect  form 
of  trial  than  that  of  No.  77  of  the  second  Plenary    Council, 
and  expressly  and  strictly  commanded  that  in  future  no  pas- 
tor or  rector  whatever,  could  be  validly  dismissed  in  punish- 
ment of  crime  from  his  mission  or  parish  without   having 
been  previously  given  a  trial  before  the   commision  of  In- 
vestigation, in  the  manner  laid  down  in   said  Instruction. 
Thus  the  Instruction  of  1878,  authentically  declared  that  the 
dismissal  of  a  removable  rector,  in  punishment  of  crime  was 
a  causa  criminalis  and  thus  fell  within  the  Instruction. 

585.  Third  period. — The  Third  Plenary  Council  of  Baltimore 
held  in    1884,  which  we  attended,  as  the  theologian  of   our 
Ordinary  has  proceeded  a  step  farther,  and  in  accordance 
with  the  schema  sent  from  Rome,  has  ordained  that  one  rec- 
tor out  of  every  ten  is  to  be  canonically  irremovable,  just 
like  canonical  parish  priests  proper.     The  Council  makes  no 
enactment  whatever  in  regard  to  rectors  who  are  not  made 
irremovable.     According  to  our  present  legislation,  there- 
fore, we  have  two  classes  of  Rectors  or  Pastors  in  charge  of 
our  missions  or  congregations,  namely  removable  and  irrem- 
ovable. 

586.  The  present  article  of  the  Instruction  expressly  points 
out  this  legislation  and  accordingly  enacts  that  the   Balti- 
more decree  No.  125,  which  declares  that  all  our  Rectors  are 
amovibiles,  remains  in  force  indeed  with  regard  to  those  rec- 


Present  Status  of  Our  Rectors.  249 

tors  whose  Churches  lack  the  conditions  prescribed  by  the 
TJiird  Plenary  Council,  and  who  are  consequently  not  made 
inamovibilcs,  but  is  of  course  abrogated  in  regard  to  irrem- 
ovable rectors.  But  does  it  follow  from  this,  that  rectors 
who  are  amoinbilcs  can  be  absolutely  removed  from  their 
mission  or  parish,  without  any  trial  ?  It  does  not.  For,  as 
we  have  seen,  the  S.  C.  de  P.  F.  in  its  response  to  the  ques- 
tions (ad  dubid)  proposed  by  our  Bishops  concerning  the  In- 
struction of  1878,  also  declared  that  the  Baltimore  decree 
No.  125,  which  made  all  our  amovibilcs,  remained  in  full 
force ;  and  yet  the  Sacred  Congregation  decreed  at  the 
same  time,  that  these  rectors,  while  remaining  amovibiles  ac- 
cording to  No.  125  of  the  Sacred  Plenary  Council,  could 
nevertheless  not  be  validly  dismissed  in  punishment  of 
crime  save  upon  a  trial  before  the  commission. 

587.  Thus  the  Sacred  Congregation,    by  decreeing  that 
the  dismissal  of  a  removable  rector  in  punishment  of  crime 
could  not  take  place  without  a  previous  trial,  decreed  by 
that  very  fact,  or  rather  declared  that  such  dismissal  was  a 
causa  criminalis    and    disciplinaris.      Hence,    this    dismissal 
cannot  be  imposed  without  a  previous  trial,  under  the  pre- 
sent Instruction,  just  as  it  could  not,  under  that  of  1878. 

588.  If  the  contrary   were  true,  it  would  follow  that  the 
condition  of  these  rectors  is  worse  now  than  it  was  under 
the  Instruction  of  1878  ;    that  therefore,  by  the  present  In- 
struction, the  Hoh'  See  had  withdrawn  the  benefits  it  had 
conferred  upon  these  rectors    by  the  Instruction  of  1878. 
Now,  this  assertion  would  be  derogatory  to  the  Holy  See. 
For,  the  rule  of  law,  as  established  by  the  Pontiffs  them- 
selves is :  "  Decet  concessum  a  principe   (Papa)  beneficium 
esse  mansurum."  1     Another  rule  of  law  is :  "  Quod  semel 
placuit,  amplius  displicere  non  potest." 2 

589.  This  will  appear  still  more  clearly,  when  we  consider 

1  Bonifacius  VIII.,  Reg.  16.  de  Reg.  Juris  in  6°.  *  Ib.,  Reg.  21. 


250  Present  Status  of  Our  Rectors. 

the  analogy  that  exists  between  the  Instruction  of  1878  and 
that  of  1884.  Both  Instructions  have  the  same  object  and 
extend  to  the  same  range  of  subjects  or  causes,  namely 
criminal  and  disciplinary  causes  of  ecclesiastics.  This  is 
manifest  from  the  very  heading  of  these  two  Instructions, 
which  is  the  same  in  both.  Now  the  S.  C.  de  P.  F.  in  its 
authentic  declarations  concerning  the  Instruction  of  1878, 
has  officially  declared  as  we  have  seen  that  the  dismissal  of 
a  removable  rector  in  punishment  of  crime  is  a  criminal  and 
disciplinary  cause,  and  therefore  cannot  be  validly  inflicted 
without  the  prescribed  trial. 

590.  Moreover   as  we  have  seen,    wherever — v.g.,  in  the 
poor  and  scattered  dioceses  of  the  far  West — the  Instructio 
Cum  Magnopere  cannot  be  observed  as  yet,  the  Instruction 
of  1878,  together  with  the  ad  dubia,  must  be  observed  ad  in- 
terim.    Now  the  latter  expressly  enacts  that  a  rector  who  is 
amovibiles  cannot  be  deprived  of  his  mission  in  punishment  of 
crime,  save  by   trial.     Hence,  if  it  were  true  that  under  the 
Instruction   Cum  Magnopere  a   removable  rector  could  be 
dismissed  from  his  mission,  without  a  trial,  it  would  follow 
that   in  the  poorer  and  smaller  dioceses  where  the  Instruc- 
tion of  1878   obtains,   removable  rectors  could  not  be  dis- 
missed   without    trial,    whereas   in    the  larger    and    more 
fully  organized  dioceses,  where   the  latest  Instruction  is  in 
force,  these  same  rectors  could  be  absolutely  removed  with- 
out any  trial.     It  is  manifest  therefore  that  under  the  present 
Instruction  Cum   Magnopere   our  removable    rectors    cannot 
be  dismissed  in  punishment    of  crime    save  by  a  trial,  as 
outlined  in    this  Instruction ;    and  that  as  a  rule,  the    dis- 
missal cannot  be  inflicted  except  for  crime. 

591.  We  have  just  said,  that   as  under  the  Instruction  of 
1878,  so  also  under  the    present  Instruction,    a  removable 
rector  cannot  as  a  rule,  be  dismissed  from  his  mission  save 
(a)  for  crimes,  (b)  and  by  trial.     This  is  in  harmony  with   the 
letter  and  spirit  of  the  general  law  of  the  church.     For  it  is  a 


Present  Status  of  Our  Rectors.  251 

general  principle  of  canon  law,  laid  down  by  Pope  Gregory, 
that  an  ecclesiastic,  even  though  he  be  amovibilis,  shall  not 
be  deprived  of  his  office,  especially  when  the  care  of  souls  is 
annexed  to  it,  except  -when  he  has  made  himself  unworthy  of  it 
by  crime ;  '  and  then  the  crime  must  \>e  juridically  established. 
This  principle  is  founded  upon  natural  justice.  For,  the 
dismissal,  even  of  a  removable  rector  is  a  privation  of  office, 
and  consequently  also  of  the  honor,  position,  dignity,  and 
emoluments  connected  with  the  office.  Hence  the  dismissal 
inflicts  plainly  both  disgrace  and  pecuniary  loss,  and  is 
therefore  a.  punishment,  nay,  a  punishment  of  the  gravest  kind. 
Now,  as  a  rule,  there  can  be  no  punishment  where  there  is 
no  crime ;  and  no  crime  has  any  existence,  in  the  eyes  of 
the  law  of  the  church,  unless  its  existence  has  been  estab- 
lished by  a  trial.  See  our  Elements,  Vol.  I.,  n.  418.  sq.  6th. 
Edition.  We  have  said,  as  a  rule  ;  for  the  exception,  see  our 
Elements,  Vol.  I.,  n.  419.  Edition  6th. 

592.  Against  this,  it  may  be  objected  that  if  our  teaching 
is  correct,  there  would  be  seen  to  be  no  longer  any  differ- 
ence between  our  removable  and  irremovable  rectors.     For 
the  answer  to  this  objection,  see  our  Elements,   Vol.  I.,  n. 
418,  Sixth  Edition,  thoroughly   revised  in  accordance  with 
the  Third  Plenary  Council  of  Baltimore. 

§  2.    Transfer  of  Rectors,  who  are  not  Irremoi>able. 

593.  It  is  certain,  as  we  have  seen,  from  the  aim  of  the 
Sacred  Congregation,  and  the  title  of  the  present  Instruc- 
tion, as  compared  with  the  title  of  the  Instruction  of  July 
20,  1878,  that  the  former  extends  to  the  same  cases  as  those 
to  which  the  latter  applied.     Consequently  the  Instruction 
of  1884  has  the  same  bearing  upon  the    transfer  of  our  re- 
movable rectors,  which  the  Instruction  of   1878  possessed. 
Now  the  bearing  of  the  latter  document  upon  the  transfer 

1  See  our  Elements,  vol.  I.,  n.  418.  Ed.  6th.  1887. 


252  Present  Status  of  Our  Rectors. 

in  question  is  thus  stated  by  the  Holy  See  itself :  •'  Episcopi 
vero  curent,  ne  sacerdotes  sine  gravi  et  rationabili  causa  de 
una  ad  aliam  missionem  invitos  transferant." J  This  con- 
clusion is  also  based  on  the  fact  that;  the  S.  C.  de  Prop. 
Fide,  in  the  present  Instruction,  (art.  xlv.)  defines  the  status 
of  our  removable  rectors,  in  the  very  same  terms  in  which  it 
defined  it  in  the  authentic  explanation  of  the  Instruction  of 
July  20,  1878." 

594.  This  law,   to     wit,     that    even    removable    rectors 
should  not  be  transferred,  withoiit  grave  and  reasonable  cause, 
is  in  harmony  with  the  entire  legislation  of  the  church.   For 
as  we  show  elsewhere,  the  sacred  canons  enact  that  ecclesi- 
astics, even  though  they  are  amovibiles  and  even  though  they 
are  not  rectors  of  souls,  shall  not  be  transferred  without  grave 
cause.     While  this  law  applies  to  all  ecclesiastics,  it  applies 
with  peculiar  force   to   a  rector  of  souls,   who  should  knozc 
his  people,  be  a  father  to  them,   and  who  should  therefore 
be  changed  or  transferred  as  little  as  possible.      See    our 
Elements,  Vol.  I.,  n.  395.  Sixth  Edition. 

595.  This  law  holds  good,  especially  when  the  transfer  is 
against  the  will  of  the  incumbent.     For,  to  one  who  is  willing, 
everything  is  easy  ;  whereas  to  one  who  is  unwilling  every- 
thing is  impossible.     Hence  such  a  transfer  without  grave 
and  sufficient  cause  would  be  beneficial  neither  to  the  person 
transferred,  nor  to  the  church  to  which  he  is  transferred. 
And  yet  the  law  of  the  church  expressly  ordains  that  trans- 
fers, especially  involuntary,  are  allowed  only  when  they  are 
either  necessary  or  useful  either  to  the  person  transferred 
or  to  the  place  to  which  he  is  transferred.  See  our  Elements, 
Vol.  I.,  n.  392.  Sixth   Edition. 

596.  It  is  moreover  certain  that  the  transfer  of  rectors  who 
are  amovibiles,  when  made  for  grave  and  reasonable  causes  of 
utility  and  necessity,  which  are  not  crimes,  must  take  place  in 

1  S.  C.  de  P.  F.  Responsum  ad  dubia.         2  See  our  Elements,  Vol.  II.,  n.    1536. 


Present  Status  of  Our  Rectors.  253 

such  a  manner  as  not  to  inflict  dishonor,  humiliation,  dis- 
grace, pecuniary  loss  or  other  grave  injury  upon  the  person 
transferred.1  In  the  estimation  of  all  mankind,  a  transfer  to 
a  worse  or  inferior  place  is  regarded  as  a  humiliation  and  a 
disgrace,  just  as  the  transfer  to  a  better  place  is  looked  upon 
by  all  2&2i  promotion  and  an  honor.  Moreover  such  transfer 
naturally  brings  with  it  also  a  diminution  of  income ;  for  the 
smaller  the  place  is,  the  smaller  will  naturally  be  the  salary 
or  perquisites  of  its  incumbent.  Now  to  inflict  dishonor  and 
disgrace  and  pecuniary  loss  is  a. punishment,  and  should,  as  a 
rule,  be  inflicted  only  for  crimes,  or  offences,  which  make  a 
person  unworthy  of  his  reputation,  and  of  the  esteem  of 
others.  Consequently  the  transfer  to  an  inferior  congre- 
gation of  a  removable  rector  should  take  place,  as  a  rule, 
only  in  punishment  of  delinquencies.  See  our  Elements,  Vol. 
I.,  N.  394.  Sixth  Edition.  See  also  the  third  volume  of  our 
Elements,  which  will  soon  be  published,  and  treat  at  length 
of  dismissals,  transfers  and  other  ecclesiastical  punishments. 
597.  This  teaching  is  clearly  pointed  out  by  the  Second 
Plenary  Council  of  Baltimore,  in  decree  N.  125.  where  it  ex- 
horts Bishops  to  transfer  rectors,  only  for  grave  causes,  and 
according  to  their  merits  or  demerits.  It  is  also  contained  in 
the  following  enactment  of  the  Fourth  Provincial  Council 
of  New  York  : 2  "  Juxta  mentem  sacrorum  canonum,  atque 
ratione  habita  recentiorum  dicisionum  S.  Cong,  de  Propa- 
ganda Fide,  decernimus,  praster  alias  causas  sufficientes 
ad  transferendos  rectores,  (amovibiles)  ab  una  missione  ad 
aliam,  etiam  minoris  <zstimationis, .  .  .  esse  sequentes.  ."  The 
same  teaching  is  conveyed  in  the  following  statute  of  the 
Synod  of  New  York,  held  as  recently  as  Oct.  1886  :  "  Quam- 
vis  itaque  Rectores,  quibus  privilegium  inamovibilitatis, 
secundum  regulas  Concili  Plen.  Bait.  III.,  a  nobis  concessum 

1  Card,  de  Luca,  lib.  xii.  de  Benef.  Disc.  97.  n.  n.  12;  Acta  S.  Sedis.  vol.   xix., 

P- 54- 

-  Cap.  xv.  art.  I. 


254  Present  Status  of  Our  Rectors. 

non  fuerit,  de  jure,  ad  nutum  Episcopi,  ut  aiunt,  a  sua  mis- 
sione  removeri  possint,  mens  Nostra  est  eos  nunquam  mun- 
ere  suo  spoliare  vel  invitos  alio  transferre,  absque  gravi  omnino 
causa.  De  hujus  sufficientia  in  casibus  occurentibus  consul- 
torum  Nostrorum  sententiam  audiamus ;  et  non  nisi  post 
Rectoris  amovendi  exceptiones  perpensas  remotionem  de- 
cernemus."  (Cone.  Plen.  II.,  n.  125.  III.  n.  32;  Prov.  IV., 
Cap.  XV.  i). 

For  fuller  explanations  on  the  dismissal,  and  transfer  of  our 
Rectors,  who  are  not  irremovable,  see  our  Elements,  Vol.  I., 
N.  395.  sq ;  415.  sq  ;  and  especially  Vol.  III.,  which  will  soon 
be  published. 


APPENDIX. 


INSTRUCTIO 

SACR.E  CONGREGATIONS  DE  PROPA- 
GANDA FIDE 

DE  MODO  SERVANDO  IN  COGNOSCENDIS 
ET  DEFINIENDIS  CAUSIS  CRIMINALIBUS 
ET  DISCIPLINARIBUS  CLERICORUM  IN 
FCEDERATIS  SXATIBUS  AMERICA 
SEPTENTRIONALIS. 


Cum  magnopere  hujus  S.  Consilii  in- 
tersit  in  ecclesiasticis  judiciis  earn 
methodum  servari,  quae  et  temporum 
circumstantiis  opportune  respondeat,  et 
regulari  justitiae  administration!,  nee  non 
Praelatorum  auctoritati  tuendae,  quere- 
lisque  reorum  praecavendis  par  omnino 
sit,  placuit  iterum  ad  examen  revocari  ea 
omnia  quae  in  hac  re  pro  ecclesiis  foe- 
deratorum  Americae  Septentrionalis 
Statuum  in  Intructione  diei  20  Julii 
anni  1878  nee  non  in  responsione  ad 
dubia  circa  eamdem  posterius  proposita 
continebantur.  Itaque  S.  C.  omnibus 
mature  perpensis,  SSmo  D.  N.  Leone 
PP.  XIII.  approbante,  haec  quae  sequun- 
tur  observanda  decrevit,  praecedenti  In- 
structione  ac  successiva  declaratione 
abrogata,  iis  exceptis  quae  in  hac  con- 
tinentur. 


INSTRUCTION 

OP    THE  SACRED    CONGREGATION    DE 
PROP.    FIDE 

ON  THE  MANNER  OF  PROCEEDING 
WHICH  MUST  BE  OBSERVED  IN  THE 
UNITED  STATES  OF  NORTH  AMERICA, 
WHEN  THERE  IS  QUESTION  OF  HEAR- 
ING AND  DECIDING  CRIMINAL  AND 
DISCIPLINARY  CAUSES  OF  ECCLESIAS- 
TICS. 

This  sacred  Council  deems  it  of  great 
importance  that  in  ecclesiastical  trials, 
such  a  method  of  proceeding  shall  be  ob- 
served, as  will  be  well  adapted  to  the 
wants  of  the  times,  wholly  adequate  to  the 
regular  administration  of  justice,  and  fully 
sufficient  to  protect  the  authority  of  Pre- 
lates, as  well  as  to  stop  complaints  on 
the  part  of  the  accused.  Hence  it  has 
pleased  this  Sacred  Congregation  to  re- 
examine  all  those  enactments  which 
were  made  in  this  matter  for  the  United 
States  of  North  America,  and  laid  down 
in  the  Instruction  of  July  20,  1878,  and 
in  the  subsequent  Response  to  doubts 
concerning  the  same.  Therefore,  the 
Sacred  Congregation  having  maturely 
weighed  all  things,  with  the  approval  of 
our  Most  Holy  Father,  Pope  Leo  XIII., 
has  decreed  that  what  follows  shall  be 
observed  in  future,  and  that  consequent- 
ly the  previous  Instruction  and  the  sub- 
sequent Declarations  are  hereby  abroga- 
ted, with  the  exception  of  what  is  con- 
tained in  the  present  Instruction. 


256 


Appendix. 


I.  Ordinarius  pro  suo  pastorali  munere 
tenetur  disciplinam  correptionemque 
clericorum  ita  diligenter  curare,  ut  circa 
eorum  mores  assidue  vigilet,  ac  remedia 
a  canonibus  statuta  sive  praecavendis, 
sive  tollendis  abusibus  in  clerum  ali- 
quando  irrepentibus  provide  adhibeat. 


n.  Haec  vero  remedia,  alia  praventiva 
sunt,  alia  repressiva.  Ilia  quidem  ad 
praepedienda  mala,  scandalorum  stimu- 
los  amovendos,  voluntarias  occasiones 
et  causas  ad  delinquendum  proximas 
vitandas  ordinantur.  Haec  vero  eum  in 
finem  constituta  sunt,  ut  delinquentes  ad 
bonam  frugem  revocentur,  ac  culparum 
consectaria  e  medio  tollantur. 

III.  Conscientiae  Ordmarii  remittitur 
cujusque  remedii  applicatio,  canonicis 
praescriptionibus  servatis  pro  casuum  ac 
circumstantiarum  gravitate. 


IV.  Praeventiva    remedia   sunt   prae- 
cipue   spiritualia   exercitia,    monitiones, 
praecepta. 

V.  Antequam   vero   ea   adhibeantur, 
summaria  factorum  recognitio  praecedat 
oportet  :   cujus  notitiam  Ordinarius  ser- 
vari   curet  ut,  si   opus   sit,  ad   ulteriora 
procedere  possit,  et  ut  auctoritati  ecclesi- 
asticae  superioris  gradus  in  casu  legitimi 
recursus  totius  rei  rationed  reddat. 


VI.  Canonicae  monitiones  vel  secreto 
fiunt  (etiam  per  epistolam  vel  per  inter- 


I.  The  Ordinary  is  bound,  by   virtue. 
of  his  Pastoral  office,  diligently  to   look 
after  the  discipline  and  correction  of  Ec- 
clesiastics.    Hence  he  should  watch  as- 
siduously over  their  conduct,  and   make 
wise  use  of  the  remedies  established  by 
the  canons,    either   for   the   purpose   of 
preventing  or  doing   away    with   abuses 
which  sometimes   creep  in  among   the 
clergy. 

II.  These  remedies  are  of  two  kinds  : 
some  are  preventiTe  ;   others    repressive. 
The  former  have  for  their  object  the  pre- 
vention of  evils,  the  removing  of  causes 
of  scandal,  and  the  avoiding  of  voluntary 
proximate   occasions  of  sin.     The   latter 
are  established  for  the  purpose  of  recall- 
ing the  delinquent  to  the  path   of  duty, 
and  of  taking  away  the  effects  of  the  of- 
ences  committed  by  him. 

III.  The   application  of  any   of  these 
remedies  is  left  to  the  conscientious  dis- 
cretion of  the  Ordinary,  provided,   how- 
ever, the  prescriptions  of  the  sacred  can- 
ons be  observed,  according  to  the  gravi- 
ty of  the  cases  and  of  the  attendant  cir- 
cumstances. 

IV.  The  following  are  the  chief  pre- 
ventive   remedies :     spiritual   exercises, 
admonitions,  precepts. 

V.  However,  before  they  are  imposed 
upon  any  one,  the  facts  calling  for  them, 
must  be  verified  in  a  summary   manner. 
The  Ordinary  should  take   care   to   pre- 
serve a  written  record  of  this    summary 
verification  or  inquiry,  in  order   that   he 
may  be  able,  if  need  be,  to   proceed  to 
ulterior  measures,    and   in    the   case   ot 
lawful  recourse,  to  give  an   accurate   ac- 
count of  the  entire  affair  to  the  higher  ec- 
clesiastical authority. 

VI.  The  canonical  warnings  may    be 
made  either  secretly  (also  by   letter,    or 


Appendix. 


257 


positam  personam)  ad  modum  paternae 
correptionis,  vel  servata  forma  legal! 
adhibentur,  ita  tamen  ut  illarum  executio 
ex  aliquo  actu  pateat. 


VII.  Quod   si  monitiones   in  irritum 
cedant,    Ordinarius  jubet,    per   Curiam 
delinquenti   analogum  praeceptum  inti- 
mari  ita,  ut  in  hoc  explicetur,  quid  ipse 
vel  facere  vel   vitare   debeat,  addita  res- 
pectivae  poenae  ecclesiasticae  commina- 
tione,  quam  si  praeceptum  transgrediatur, 
incurret. 

VIII.  Praeceptum  delinquenti  a  Curiae 
Cancellario    coram  Vicario  generali   in- 
jungitur,  aut  etiam  coram  duobus  testi- 
bus    ecclesiasticis    vel     laicis    spectatae 
probitatis. 

l~.  Actus  injunctionis  praecepti  sig- 
natura  partibus  preasentibus,  et  a  delin- 
quente  etiam,  si  velit. 

2J.  Vicarius  Generalis  jusjurandum 
testibus  imponere  potest  de  secreto 
servando,  si  prudenter  a  natura  rei,  de 
qua  agitur,  id  requiratur. 

IX.  Quod   vero   pertinet  ad  remedia 
repressiva    sua    poenas,    animadvertant 
Ordinarii  in   suo  pleno   vigore   manere 
remedium   extrajudiciale    ex    informata 
conscientia    pro   occultis   reatibus   a   S. 
Concilio  Tridentino  constitutum  C.  I.  § 
14.  de  Reform. 

X.  In  actione  criminali  vel  ob  praecepti 
inobservantium,   vel  ob  communes  rea- 
tus,  vel  ob  ecclesiasticarum  legum  trans- 
gressionem  processus  summarie  et  sine 
strepitu  judicii  servatis   semper   in  tola 
sua   substantia     justitiae    regulis     con- 
ficiatur. 

XI.  Processus  ex  officio  instruitur,  vel 


by  means  of  a  third  person),  by  way  of 
paternal  corrections,  or  they  may  be  giv- 
en with  the  formalities  prescribed  by 
law,  provided  always  that  the  fact  of 
their  having  been  really  given  appears 
from  some  act. 

VII.  If  the   admonitions   fail   to   pro- 
duce any  effect,  the  Ordinary  will  order 
the  curia  to  communicate   to  the  delin- 
quent a  precept  analogous  to   the   warn- 
ings.    This  precept   should   state   what 
the  delinquent  must  do   or  avoid,   and 
also  explain  what   ecclesiastical   punish- 
ment will  be  inflicted  upon  him,  in   case 
he  disobeys  the  precept. 

VIII.  The   precept   will  be   enjoined 
upon  the  delinquent  by  the  chancellor  ot 
the  curia,  in  the  presence  of  the  Vicar- 
general,  or  of  two  Ecclesiastics,  or   laics- 
of  probity,  as  witnesses. 

lc  The  act  of  the  enjoining  of  the  pre- 
cept is  signed  by  the  parties  present, 
and  also  by  the  delinquent,  if  he  wishes. 

2°  The  Vicar-General  can  impose  up- 
on the  witnesses  the  oath  to  observe 
secrecy,  if  this  is  prudently  required,  on 
account  of  the  nature  of  the  case. 

IX.  So    far   as    concerns    repressive 
remedies,    or   punishments,    Ordinaries 
will    remember    that    the    extrajudicial 
remedy  established  by  the  Council  of 
Trent,    sess.    xiv.,  cap.  I.    de   Ref.,    for 
occult  crimes,  remains  in  full  force. 

X.  In  a  criminal  action  instituted  eith- 
er for  the  violation  of  the  precept,  or  for 
common  crimes,  or  for  the  transgression 
of  ecclesiastical  laws,  the  trial  will   be 
conducted  in   a  summary   manner  and 
without  the   nice  formalities   of  solemn 
trials,  yet  so  that  the  rules  of  justice  be 
always  observed  in  all  their  substance. 

XI.  The  trial  is  begun  ex   officio,   and 


Appendix. 


accepto  supplici  libello,  vel  accusatione, 
vel  nuncio  quoquomodo  ad  Curiam  per- 
lato,  et  usque  ad  terminum  perducitur 
-co  consilio,  ut  omni  studio  ac  prudentia 
veritas  detegatur,  ac  turn  de  crimine  turn 
de  reitate  vel  innocentia  accusati  causa 
-eliquetur. 


XII.  Ubi  Curiae  jam  constitutae  sunt, 
•compilatio  processus  coramitti  potest 
probo  ac  perito  viro  ecclesiastico,  cui 
assistat  actuarius.  In  dioecesibus  vero 
in  quibus  Curiae  episcopales  nondum 
possint  iiistitui,  interim  observanda  est 
Instructio  anni  1878  cum  responsione 
earn  subsequent!  ad  proposita  dubia. 
Defensio  autem  rei  erit  in  scriptis  ex- 
hibenda  ad  normam  praesentis  Instruc- 
tionis.  Videlicet  singuli  Antistites  in 
Synodo  Dioecesana  audito  clericorum 
consilio,  quod  tamen  sequi  non  ten- 
entur,  quinque,  vel  ubi  adjuncta 
rerum  id  fieri  non  sinant,  tres  sal- 
tern presbyteros  ex  probatissimis  et, 
quantum  fieri,  poterit  in  jure  canonico 
peritis  seligant  adhujusmodi  officium,  ut 
in  praedicta  Instructione  declaratum  ex- 
stat,  exercendnm.  Quod  si  ob  aliquam 
gravem  causam  Synodus  haberi  nequeat, 
quinque  vel  tres  ut  supra  ecclesiastici 
viri  per  episcopum  ad  idem  munus 
deputentur.  Electi  m  officio  manebunt 
usque  ad  proximam  Dioecesanae  Synodi 
celebrationem,  in  quavel  confirmentur 
vel  alii  eorum  loco  designentur.  Quod 
si  interclum  morte  aut  renuntiatione 
vel  alia  causa  praecriptus  consiliariorum 
numerus  minuatur,  episcopus  audito 
consilio  caeterorum  ad  commissionem 
pertinentium  alios  sufficiet.  Porro  com- 
missio  haec  Consultorum  jurejurando 
•obstricta  tenetur  ad  officium  fidelitur 


!  that  either  on  occasion  of  complaints,  or 
|  of  accusations,  or  of  information  brought 
to  the  curia  in  any  way  whatever,  and 
is  carried  to  its  end  in  such  a  manner 
that  the  truth  will,  in  all  sincerity  and 
prudence,  be  discovered,  and  that  a  clear 
knowledge  will  be  obtained  both  of  the 
crime  itself,  and  of  the  guilt  or  inno- 
cence of  the  accused. 

XII.  Where  cut  is  are  already  es- 
tablished, the  compilatio  processus,  that 
is,  the  conduct  of  the  trial,  consisting  in  • 
the  gathering  together  of  the  evidence  of 
both  parties,  may  be  entrusted  to  a 
worthy  and  expert  ecclesiastic,  who 
shall  be  attended  by  a  secretary. 

In  those  dioceses,  however,  in  which 
Episcopal  courts  cannot,  as  yet,  be  estab- 
lished, the  Instruction  of  1878,  together 
with  the  subsequent  answer  to  the  pro- 
posed doubts  concerning  the  same, 
shall  be  meanwhile  observed.  That  is, 
each  Bishop,  after  having  heard  the 
advice  of  his  clergy  assembled  in  dioces- 
an synod — which  advice,  however,  he 
is  not  bound  to  follow — shall  appoint 
five,  or  where  this  number  cannot  be 
had,  at  least  three  of  the  most  worthy 
priests,  and  who  are,  as  far  as  possible, 
learned  in  canon  law,  to  discharge  the 
duties  outlined  in  said  Instruction. 
Where,  for  some  grave  reason,  the  synod 
cannot  be  held,  five  or  three  Ecclesias- 
tics, as  above,  will  be  appointed  by  the 
Bishop  to  this  office.  The  members 
thus  chosen  will  remain  in  office  till  the 
next  diocesan  synod,  when  they  may  be 
confirmed,  or  others  selected  in  their 
stead.  But  should  the  prescribed  num- 
ber of  these  Councillors  be  sometimes 
lessened  whether  by  death,  resignation, 
or  other  cause;  the  Bishop,  having 
taken  the  advice  of  the  remaining  mem- 


Appendix. 


259 


adimplendum,  et  praeside  Episcopo  vel 
Vicario  General!  rern  suam  aget. 


XIII.  In     qualibet   Curia    episcopali 
procurator   fiscalis   constituetur,    ut  ju- 
stitise  et  legi  satisfiat. 

XIV.  Pro  intimationibus  vel  notifica- 
tionibus,    si   Apparitores  curiae   desint, 
utatur   Episcopus  persona  aliqua  quali- 
ficata,    quae    eas    exbibeat,  ac  de    hoc 
ipsum   certiorem   reddat :     vel   etiam   a 
Curia  per  public os  tabellarios  comrnen- 
datae  (quibus  locis  hoc  systema  vigeat) 
transmittantur,     exquisita  fide     exhibi- 
tionis  atque  acceptionis  vel  repudii.     In- 
timationes   et   notificationes    semper   in 
scriptis  absolute  fiant. 


XV.  Delicti  fundamentum  erui  po- 
test  ex  ipsa  expositione  habita  in  proces- 
su,  quae  authenticis  informationibus 
vel  confessione  extrajudiciali,  vel  tes- 
tium  depositionibus  confirmetur  :  trans- 
gressio  vero  praecepti  ex  ipso  decreto 
et  actu  intimationis  ad  normam  art. 
VII.  et  VIII.  factae  deducitur. 


XVI.  Ad   admittendam  vero   rei   cul- 
pabilitatem  necessaria  est  probatio  lega- 


i  bers  of  the  Commission,  will  appoint 
others  in  their  stead.  This  Commis- 
sion of  Con  suitors,  which  is  bound  by 
oath  to  discharge  its  duties  faithfullv, 
will  conduct  its  proceedings  under  the 
presidency  of  the  Bishop  or  his  Vicar- 
General.  However,  the  summing  up 
or  final  defence  of  the  accused  must  be 
made  in  writing,  in  the  manner  laid 
down  in  the  present  Instruction. 

XIII.  A  diocesan  prosecutor  shall  be 
appointed  in  every  Episcopal  curia,  in  or- 
der that  justice  and  law  may  be  upheld. 

XIV.  For  delivering  intimations  and 
notices,  where  no  official  messengers  are 
attached  to  the  curia,  the   Bishop  shall 
employ  some  reliable  person,  who  shall 
deliver  them,    and   inform  him  of  such 
delivery.      These  notices  may    also  be 
sent  by  the  curia,   by  registered  mail, 
(where   this   postal   system   exists),    in 
which  case,    a  receipt   of  their  having 
been  delivered  and  of  their  having  been 
accepted  or  refused,  should  be  obtained. 

Intimations     and    notifications    must 
always  be  absolutely  in  writing. 

XV.  The  groundwork  upon  which  the 
procurator  fiscalis  bases  his  charges,  so 
far  as  the  offence  or  crime  is  concerned, 
can  be   obtained  from  the   information 
obtained  in  the  manner  indicated  above, 
under  articles  v.  and  xi.     This  expose  or 
information    .should  be  corroborated  by 
inquiries  from  authentic  sources,  or  by 
extrajudicial  confessions,  or  by  the  de- 
positions  of  witnesses.     This   ground- 
work, so  far  as  the  violation  of  the  precept 
is  concerned  is  obtained  from  the  pre- 
cept 'itself,   and  the  acts    of  its  having 
been     enjoined     in     accordance     with 
articles  vii,  and  viii. 

XVI.  However,   in  order  to  assume 
i  the  accused  guilty,  so  as  to  cite  him  for 


260 


Appendix. 


lis,  quae  iis  momentis  constare  debet, 
quibus  veritas  vere  demonstrata  eluces- 
cat,  vel  saltern  moralis  convictio  induca- 
tur  quocumque  rationabili  dubio  opposi- 
ti  remote. 


XVH.  Personae  quae  examini  subji- 
ciendae  sunt,  separatim  audiuntur. 

XVIIL  Testes  ad  probationem,  sive 
ad  defensionem.  si  legalia  impedimenta 
id  non  prohibeant,  audiantur  praestito 
juramento  de  veritate  dicenda,  et  si  res 
postulet,  etiam  de  secreto  servando. 
Itaque  antequam  testificentur,  cum  de 
veritate  turn  de  secreto  jurent.  Eo 
magis  de  officio  fideliter  adimplendo  et 
de  secreto,  pro  rei,  de  qua  agitur,  exi- 
gentia,  servando  omnes  juramento  ob- 
stricti  sint  oportet,  qui  in  instructione 
processus  ex  suo  munere  partem  ali- 
<juam  habeant. 

XIX.  Testes  qui  in  locis  longe  dissitis 
vel  in  aliena  Dioecesi  degunt,  mediante 
auctorfcate  ecclesiastica  loci  in  quo 
manent,  examinentur,  in  quern  finem 
specimen  factorum  transmittetur  :  quae 
quidem  auctoritas  in  responsione  nor- 
mas  in  hac  Instructione  contentas  ob- 
servabit. 


XX.  Si  indicentur  testes,  qui  de  factis 
vel  circumstantiis  ad  meritum  causae 
substantiale  spectantibus  interrogandi 
essent,  nee  examinari  possint,  vel  quia 
non  licet  aut  decet  eos  citare  in  judi- 
cium,  vel  quia  rogati  adesse  recusent, 
necesse  est  id  in  actis  commemorare, 
eorumque  deficientia  suppletur  testi- 


trial,  and  eventually  convict  him,  legal 
proof  is  required.  This  legal  proof 
must  be  made  up  of  such  elements,  as 
will  really  and  fully  demonstrate  the 
truth,  or  at  least  create  a  moral  convic- 
tion of  the  guilt  of  the  accused,  and  re- 
move all  reasonable  doubt  to  the  con- 
trary. 

XVII.  Persons  who  are  subjected  to 
examination,  are  heard  separately,    that 
is,  apart  from  each  other. 

XVIII.  The   witnesses,    whether  for 
the   prosecution   or  for  the  defence,    in 
case  the  secular  law  does  not  forbid  it, 
should   take   the   oath  to  tell  the  truth, 
and  also  if  the  case  demands,  to  observe 
secrecy.     Consequently,  before  they  tes- 
tify, they  shall  swear  that  they  will  tell 
the   truth     and    also    observe    secrecy. 
With  greater  reason,  all  those*  who  take 
any   part  in  the   proceedings,  by  virtue 
of  their  office,  must  swear  that  they  will 
discharge  their  duties  faithfully  and  also 
observe  secrecy,  as  far  as  the  nature   of 
the  case  requires. 

XIX.  Witnesses  who  are  in  a  distant 
part  of  the  diocese,  or  in  a  different  dio- 
cese altogether,  shall  be  examined  by  the 
ecclesiastical  authority  of  the  place  where 
they  are.     For    this   purpose,    a   state- 
ment of  the   case  is  transmitted  to    it. 
This  authority  shall,  in  complying   with 
the    request   to  examine   the   witnesses, 
observe  the  rules  laid  down  in  this  In- 
struction. 

XX.  Should  witnesses  be  pointed  out, 
who  ought  to  be   examined   respecting 
facts  or  circumstances  which  have  refer- 
ence  to   the   substantial    merits   of  the 
cause,  and  who,  nevertheless,  cannot  be 
examined,  either  because  it  is  not  lawful 
or  proper  to  cite  them  to  appear  in  court, 
or  because,  they   refuse  to  appear,    after 


Appendix. 


261 


moniis  aliorum,  qui  vel  de  relate  vel  ali- 
ter  rem  de  qua  quaeriter,  noverint. 


XXI.  Ubi  id  omne  quod  ad  veritatem 
factorum   constituendam  et  culpam   ac- 
cusati    probandam    pertinet,  absolutum 
fuerit,  imputatus  intimatione  scripta  ad 
examen  vocatur. 

XXII.  In  intimatione,  nisi  prudentia 
obstet,    accusationes   contra   reum  per- 
latae  per  extensum    referuntur,    ut  ad 
responsionem  se  praeparare  possit. 

XXIII.  Quod     si     ob    accusationum 
qualitatem   vel  alia  de  causa  haud   expe- 
diat.  ut    in    intimatione  exprimantur,  in 
hac  satis  erit  innuere,  ipsum  ad  examen 
vocari   ut   in  causa,  de  qua  contra   eum 
fit  inquisitio,  sese  defendat. 


XXIV.  Si  ad  examen  accedere  recu- 
set,  iterum  fit  intimatio,  atque  in  ea 
congruum  tempus  peremptorium  prae- 
finitur,  intra  quod  reus  coram  tribunali 
se  sistere  debeat,  eique  siguificatur,  si 
non  pareat,  contumacem  esse  judican- 
dum  :  quam  intimationem  si  haud  pro- 
bato  legitimo  impedimento  transgredia- 
tur,  ut  contumax  de  facto  habebitur. 


XXV.  Verum  si   ad  examen   accedat, 
audiartur:    et   ubi   inductiones     alicujus 
valoris  exhibeat,  eae,  quantum  fieri   po- 
test,  accurate  discutiantur. 

XXVI.  Dein  accedendum  est  ad  con- 
testationem   delicti   et     argumentorum, 
quae  prostant,  ut   inquisitus    et  culpabi- 


having  been  asked  to  appear,  it  becomes 
necessary  to  mention  this  in  the  acts, 
and  their  absence  is  supplied  by  the  tes- 
timony of  other  witnesses,  who  know  of 
the  facts  either  from  hearsay  or  from 
other  sources. 

XXI.  When  all  the  evidence  has  been 
collected  which  goes  to  show  the   truth 
of  the  facts  in  the  case,  and  the  guilt   of 
the  accused,  the  latter   is  called  to   trial, 
by  a  written  summons  or  intimation. 

XXII.  In   the   citation,    unless    pru- 
dence forbids,    the   accusations   brought 
against   the  accused,    are  stated  in  full, 
so  that  he  may  prepare  for  his  defence. 

XXIII.  But   if,    on   account   of  the 
character  of  the  accusations,  or  of  some 
other  cause,  it   is  not   expedient  to  ex- 
press  the  accusations  in  the   citation,    it 
will  be  sufficient  to  intimate  in   it,    that 
the  accused  is  called  to  trial  in  order   to 
defend  himself  in  a  matter  which  is  un- 
der investigation. 

XXIV.  If  he   refuses   to   appear   for 
trial,    he  is  summoned  a  second   time. 
In  this   second  citation,    a  peremptory 
term  is  fixed,  within  which  the  accused 
must  appear,  and  he  is  informed  that  if 
he  fails  to  obey,  he  will  be  adjudged  con- 
tumacious.     Should  he  also  refuse  to 
comply   with  this  second  citation,    with- 
out proving  a  legitimate  hindrance,  he 
shall,   as  a  matter  of  fact,  be  regarded 
as  contumacious. 

XXV.  But  if  he  appears  in  court,    he 
should    be  heard.       And   if  he   makes 
statements   of    any    consequence,   they 
should,  as  far  as  possible,  be  accurately 
discussed. 

XXVI.  The  next  step  is  the  plea,   or 
contestation   of  the   offence   and   of  the 
proofs  extant  which  go  to  show  that  the 


262 


Appendix. 


lis  habeatur   et  in  poenas  canonicas   in- 
curisse  censeatur. 

XXVII.  Inquisitus,  ubi  ex  his  nove- 
rit,  quae  in  actis  contra  ipsum  relata 
sunt,  ad  ea  respondere  potest,  ac,  si  ve- 
lit,  utetur  jure  defensionis  a  se  ipso  in 
scriptis  peragendse. 


XXVIII.  Potest  etiam,   si  postulet, 
obtinere,    ut  terminus   ad   defensionem 
scripto  exhibendam  prcefigatur :  maxime 
si  ob  ea  quse  art.  XXIII   indicata  sunt, 
responsionem  ad  accusationes  contra  se 
latas  parare  non  potuerit. 

XXIX.  Absolute    processu  redactor 
actorum   summarium   prsecipuorum   ar- 
gumentorum.  quae  ex  ipso  elucent,  con- 
ficiat 

XXX.  Qua  die  causa  proponetur,  in- 
quisito  net   facultas   defensionem   suam 
per   alium   sacerdotem   suo   nomine   in 
scriptis   exhibendi.     Quod   si    idoneum 
non  reperiat,  laicum  catholicum   adhibe- 
re  potest.     Quisque  autem  ex  iis  ab  Or- 
dinario  approbandus  est. 


XXXI.  Si  vero  reus  defensorem  depu- 
tare  recuset,  Ordinarius  ilium  ex   officio 
designabit. 

XXXII.  Defensor  debitis  sub  cautelis 
in  Cancellaria  Curiae  processum  ejusque 
summarium  inspiciet,  ut   reum  tueatur ; 
ac  defensionem   ante  causae  ipsius   pro- 
positionem  scripto  exhibebit.     Ipse  quo- 
que  ad  juramentum  de  secreto   servando 
tenetur,  quando  judex  indolem   causae 
id  postulare  censuerit. 


accused  should  be  considered  guilty  and 
has  rendered  himself  liable  to  canonical 
punishments. 

XXVII.  When  the  accused,  from  what 
has  taken  place  thus  far,  knows  all  that  is 
contained  in  the  Acts  against  him,  he  can 
make  his  defence  and  therefore   produce 
his  witnesses,  etc.     He  can   also,  if  he 
wishes,  make  use  of  the  right  to  hand  in 
a  written  defence  which  must  be  signed 
by  himself. 

XXVIII.  He    can,    moreover,    if    he 
asks  for  it,  obtain  a  suitable  delay  to  en- 
able him  to  present  this  written  defence, 
especially  where  on  account   of  what  is 
said  in  article  XXIII.,   he   has   not  been 
able  to  get  ready  his   reply  to  the  accu- 
sations brought  against  him. 

XXIX.  When   the   trial   is   over,    the 
auditor  shall  make  out  a   written  synop- 
sis of  the  principal  evidence  submitted  on 
both  sides,  and  of  the   legal    deductions 
flowing  from  it. 

XXX.  On  the  day  on  which  the   final 
summing  up  will  take  place,  the  accused 
will  have  the  right  to  make  his  final  de- 
fence or  summing  up  in  writing,  through 
another  priest  acting  for  him,  and  in  his 
name.     But  if  he  does  not  find  a  compe- 
tent priest  to  do  this,  he  can   employ   a 
Catholic  layman.     Each   of  these,  how- 
ever, must  be  approved  by  the  Ordinary. 

XXXI.  Should  the  accused  decline  to 
appoint  an   advocate,  the  Ordinary  will 
ex  officio  designate  one  for  him. 

XXXII.  The  advocate  will,  under  due 
precautionary  measures,  examine  the  en- 
tire process  and  its  synopsis  in  the  chan- 
cery of  the  curia,  in   order  that  he  may 
be  able  to   defend  the  accused.     And  he 
will  hand  in  the  defence  or  summing  up, 
in   writing,  prior  to   the   day  on    which 
the  case  is  to  be  proposed  and  final  sen- 


Appendix. 


263 


XXXIII.  Processus  ejusque  summa- 
rium  ad  procuratorem  fiscalem  mittitur, 
ut  officio  suo  fungi  possit.  Postquam 
Procurator  fiscalis  suas  conclusiones  edi- 
derit,  eaedam  defensori  rei  communi- 
candae  sunt  ut  ad  easdem  si  placuerit  in 
scriptis  respondeat ;  turn  omnia  ad  ordi- 
narium  remittuntur  qui,  ubi  in  plenam 
causae  cognitionem  devenerit,  diem  con- 
stituet  in  qua  sententia  dicenda  sit. 


XXXIV.  Praestituta  die,  ab  Episcopo 
vel  Vicario  Generali  praesente  procura- 
tore  fiscali  et  defensore  sententia  pro- 
nunciatur,  ejusque  pars  dispositiva  Can- 
cellario  dictatur,  expressa  mentione  fac- 
ta,  si  damnation!  sit  locus,  sanctiunis 
canonicae  quae  contra  imputatum  appli- 
catur. 


XXXVT.  Sententia  reo  intimetur,  qui 
potest  ad  auctoritatem  superioris  instan- 
tiae  appellationem  interponere. 

XXXVI.  In  appellatione  observentur 
normae  expressae  in  Constit.  sa.  me. 
Benedict!  XIV.  Ad  Militantis  diei  30 
Martii  1742  ac  caeterae  indictae  a  S.  C. 
Episcoporum  et  RR.  decreto  diei  18 
Decembris  1835  et  epistola  circulari  diei 
I  Aug.  1851. 


XXXVII.  Intra  terminum  decem  di- 
erum  a  notificatione  sententiae  interpo- 
sitio  appellationis  fieri  debet,  quo  elap- 
so  tempore  sententiae  executio  locum 
habet. 


tence  pronounced.  He  is  also  obliged 
to  take  the  oath  to  observe  secrecy, 
should  the  judge  believe  that  the  nature 
of  the  case  demands  it 

XXXIII.  The  trial  and  its   resume  are 
sent  to  the  procurator  fiscalis,  in   order 
that  he  may  be  able  to   fulfil  the  duties 

1  of  his  office.  After  the  procurator  fiscalis 
has  handed  in  his  written  summing  up, 
the  latter  is  communicated  to  the  advo- 
cate of  the  accused,  so  that  he  may,  if  he 
chooses,  reply  to  it  in  writing.  There- 
upon all  the  acts  are  remitted  to  the  Or- 
dinary who,  after  acquiring  a  full  knowl- 
edge of  the  case,  fixes  a  day  for  the  pro- 
nouncing of  the  final  sentence. 

XXXIV.  On    the   day  appointed,  the 
Bishop  or  his  Vicar-General  pronounces 
the  sentence,  in  the  presence  of  the  dio- 
cesan prosecutor  and  of  the  advocate  of 
the  accused,  dictating  its  dispositive  part 
to  the   chancellor,  and   making  express 
mention,    in   case  he  pronounces   con- 
demnatory sentence,  of  the  ecclesiastical 
law  sanctioning  the   punishment,  which 
is  applied  to  the  accused. 

XXXV.  The  sentence  shall   then    be 
delivered  to  the  accused,  who  can  appeal 
to  the  authority  of  the  higher  instance. 

XXXVI.  In    the   appeal,  it   will  be 
necessary   to     observe    the   regulations 
made  by   Pope   Benedict   XIV.,  of  holy 
memory,  in  his    constitution   Ad  Milit- 
antis,   March  30,    1742,    as   also  those 
rules  which  are  laid  down  by  the  Sacred 
Congregation  of  Bishops  and    Regulars, 
in  the  decree  of  Dec.  18,    1835,  and   in 
the  circular  of  Aug.  i,  1851. 

XXXVII.  The  appeal  should  be  inter- 
posed within  the  space  of  ten  days  from 
the  time  the  sentence  was  served  on  the 
accused.     When  this  term  has   elapsed, 
and  no  appeal  has   been   made,  the  sen- 
tence can  be  executed. 


264 


Appendix. 


XXXVIII.  Appellatione  interposita, 
continue  Curia  ad  auctoritatem  ecclesi- 
asticam  superioris  instantiae  omnia   acta 
causae   in   suis   autogaphis,  id  est  pro- 
cessum,  ejus   summarium,   defensionem 
ac  sententiam  mittit. 

XXXIX.  Haec  porro  superioris  instan- 
tiae auctoritas   appellatione  cognita  ap- 
pellant! injungit,   ut   intra  triginta   dies 
defensorem  deputet,  qui  ab  ipsa  appro- 
bandus  est. 

XL.  Eo  termino  peremptorio  frustra 
elapso,  censetur  reus  beneficio  appella- 
tionis  renuntiasse,  quampropterea  judex 
gradus  superioris  peremptam  declarat. 


XLI.  In  appellatione  a  sententia 
Curiae  episcopalis  ad  metropolitanam 
archiepiscopus  in  causa  cognoscenda  ac 
definienda  eadem  procedendi  methodo 
utetur,  quae  in  hac  instructione  indi- 
catur. 

XLII.  Si  clericus  ob  communes  reatus 
a  civili  potestate  privilegio  fori  non  ob- 
stante  processui  ac  judicio  subjiciatur, 
Ordinarius  summariam  informationem 
criminis  assumit,  ac  inquirit,  num  ad 
normam  sacrorum  canonum  infamiae, 
irregularitati,  vel  alii  ecclesiasticae  sanc- 
tioni  locus  esse  possit. 


§  I.  Pendente  judicio  vel  imputato  in 
carcere  detento  prudens  consilium  erit, 
ut  Ordinarius  ordinationes  mere  proviso- 
rias  adhibeat. 

§  3.  Judicio  absolute  si  liber  accusatus 
remittatur,  Curia  episcopalis  juxta  infor- 
mationes  ut  supra  assumptas  ea  ratione 


XXXVIII.  However,  when  the  appeal 
is  interposed,  the   curia   shall   forthwith 
transmit  to  the  ecclesiastical  authority  of 
the  higher  instance   all   the  acts  of  the 
cause,    in   their  originals,    namely,    the 
trial,  its  synopsis,  the  summing  up,   and 
the  sentence. 

XXXIX.  This  authority  of  the  higher 
instance,    having   been  informed  of  the 
appeal,  commands   the  appellant  to  ap- 
point,  within  thirty  days,  an   advocate 
for  himself,  who  must  be  approved  by  it. 

XL.  When  the  peremptory  space  of 
30  days  has  expired,  and  the  accused  has 
not  presented  any  advocate,  he  is  re- 
garded as  having  given  up  the  benefit  of 
appealing.  Consequently,  the  judge  of 
the  higher  instance  shall  declare  the  ap- 
peal extinct. 

XLI.  In  the  appeal  from  the  sentence 
of  the  Episcopal  curia  to  the  Metropoli- 
tan's curia,  the  archbishop  will,  in  hear- 
ing and  deciding  the  cause,  use  the  same 
mode  of  proceeding  which  is  outlined  in 
this  Instruction. 

XLII.  Where  an  ecclesiastic  notwith- 
standing the  privilege  of  exemption  from 
the  secular  forum,  is  placed  on  trial  by 
the  civil  authorities  for  common  offences, 
the  Ordinary  will  make  a  summary  in- 
quiry into  the  alleged  crime,  and  see 
whether,  according  to  the  sacred  canons, 
the  accused  has  made  himself  liable  to 
infamy,  irregularity  or  any  other  canon- 
ical punishment. 

i°.  Pending  the  trial,  or  while  the  ac- 
cused is  in  prison,  it  will  be  advisable 
for  the  Ordinary  to  adopt  merely  pro- 
visional measures. 

2°.  When  the  trial  is  over,  if  the  ac- 
cused is  set  at  liberty,  the  Episcopal 
curia  will,  according  to  the  nature  of  the 


Appendix. 


265 


procedet,  quae  in  hac  instructione   con- 
stituitur. 

XLIII.  In  casibus  dubiis  diversisque 
in  praxi  difficultatibus  Ordinarii  Sacram 
hanc  Congregationem  consulant,  ut  con- 
tentiones  ac  nullitatem  actorum  devitent. 

XLIV.  Haud  ita  facile  Curiae  episco- 
pales  ad  damna  vel  expensas  resarciendas 
damnari  poterunt;  quoties  enim  ex 
processu  informativo  indicia  sufficientia 
ad  agendum  contra  inquisitum  appare- 
ant,  judex  appellationis  a  talibus  damna- 
tionibus  abstineat,  cum  ea  indicia 
sufficiant  ut  in  judice,  qui  antea  pro- 
cessit,  ea  vera  etpropria  calumnia  exclu- 
datur,  quse  ad  hujusmodi  damnationem 
requiritur. 


XLV.  Concilii  plenarii  Baltimorensis 
II.  decreta  N.  125  quoad  naturam 
missionum,  etN.  77.  108  quoad  juridicos 
efifectus  remotionis,  missionariorum  ab 
officio,  uullatenus  innovata  seu  infirmata 
intelliguntur,  salvis  iis  quae  recentius  de 
Parochis  seu  Rectoribus  inamovibilibus 
constitute  sunt. 


information  obtained  as  above,  proceed 
in  the  manner  laid  down  in  this  Instruc- 
tion. 

XLIII.  In  doubtful  cases,  and  in  the 
various  difficulties  coming  up  in  practice 
Ordinaries  should  consult  this  sacred 
Congregation,  in  order  that  they  may 
avoid  contentions  and  nullity  of  the  acts. 

XLIV.  Episcopal  courts  cannot  be  so 
easily  condemned  to  pay  costs  or  dam- 
ages. For,  whenever  it  appears  from 
the  informative  process  of  the  curia  a 
qua  that  there  were  sufficient  indications 
of  guilt  to  warrant  the  curia  to  proceed 
against  the  accused,  the  judge  of  appeal 
shall  abstain  from  the  condemnations  in 
question,  since  those  indications  of  guilt 
are  sufficient  to  exonerate  the  judge  of 
the  lower  instance  from  that  true  and 
real  calumny  or  false  accusation  which  is 
required  for  these  condemnations. 

XLY.  The  decrees  of  the  Second 
Plenary  Council  of  Baltimore,  No.  125, 
so  far  as  regards  the  character  of  mis- 
sions or  congregations,  and  Nos.  77, 108, 
so  far  as  concerns  the  juridical  effects  of 
the  removal  of  missionaries  from  office, 
are  in  no  wise  changed  or  abrogated, 
excepting  in  so  far  as  they  are  modi- 
fied by  the  regulations  which  have  been 
recently  made  respecting  irremovable 
parish  priests  or  rectors. 


II. 
DE    APPELLATION1BUS 

ET  INHIBITIONIBUS  CONCEDENDIS  VEL  DENEGANDIS. 

Benedictus  Episcopus  Setvus  Servorum  Dei.     Ad perpetuam  rei  memoriam. 

Ad  militantis  Ecclesise  regimen  nullo  meritorum  Nostrorum  suffragio,  sed  imper- 

scrutabilis  consilii  altitudine  evocati,  inter  graves  curas,  quas  assidue  pro  Nostro 

munere  sustinemus,  postrema  ilia  non  est,  in  quam  totis  viribus  Xobis  incumbendum 


266  Appendix. 

esse  ducimus,  ut  graves  nimium,  diuturnse,  nulloque  unquam  tempore  intermissae  Epis- 
coporum  aliorumque  ordinariam  Jurisdictiouem  habentium  querelae  adversus  Majora 
Tribunalia  atque  ilia  etiam  Nostrae  Romante  Curia?,  propositee,  tandem  compescantur. 

§  1.  Intimo  siquidem  animi  Nostri  moerore,  cum  in  minoribus  adhuc  essemus. 
jamdiu  intelleximus,  plerosque  Locorum  Ordinaries  conqueri,  sensim  abusum 
irrepsisse,  quod  ad  malitiosam  petentium  suggestionem,  a  Patriarchis,  Metropolitani.s. 
Sanctse  Sedis  a  latere  Legatis,  et  diversis  dictas  Romanae  Curias  Judicibus,  Inhib- 
itiones  sine  delectu  Causae,  et  rei,  de  qua  igitur,  examine,  passim  concedantur.  Et 
quamvis  in  more  positum  sit,  dictas  Inhibitiones  indebite  expeditas  pro  causie 
meritis  revocari,  et  aboleri ;  remedium  tamen  inflicto  vulneri  non  satis  esse  dicunt 
cum  interea  oporteat  Episcopos  aliosque  inferiores  Judices,  in  ipso  causarum,  et 
Judiciorum  cursu,  otiosos  immorari,  jus  suum  judicialiter  asserere,  et  vindicare,  et 
ad  continendos  in  officio  Populos  gravia  ssepe  incommoda  et  dispendia  subire. 

§  2.  E  contrario  Nobis  quoque,  dum  etiam  in  minoribus  essemus,  Superiorum 
Judicum  responsiones  audire  contigit,  asserentium,  memoratas  querelas  inanes  esse, 
nee  ulli  innixas  f  undamento,  utpote  ex  hac  unica  re  causam,  et  originem  habentes, 
quod  inferioribus  grave  est  obedientiaa,  ac  subjectionis  jugum  ergamajora  Tribunalia, 
ipsisque  nimis  displicet,  sibi  subditis  appellationis  beneficio  succurri. 

§  3.  Porro  cum  facile  haec  dissidia  componi,  et  succrescentia  litium  semina  avelli 
possint;  si,  quas  a  Sacra  Tridentina  Synodo,  ab  Apostolicis  Constitutionibus,  et 
Congregationum  Decretis  provide  sancita  sunt,  debitae  executioni  mandentur :  Xos 
idcirco  ad  conservandam  Ecclesiae  disciplinam,  restituendamque  Tribunalibus  formam 
eisdem  canonicis  legibus  consentaneam,  pro  credito  Xobis  Apostolicaj  servitutis 
offieio,  opportune  duximus  consulendum. 

§  4.  Inhaerentes  itaque  Decretis  ejusdcm  Sacri  Concilii,  necnon  Congregationis 
Episcoporum  et  Regularium,  jussu  et  approbatione  rec.  mem.  dementis  PP.  Till. 
Praedecessoris  Nostri  alias  editis  die  XVI.  Octobris  MDC.;  Itemque  aliis  Congre- 
gationis  particularis,  jussu  pariter,  et  approbatione  fel.  rec.  Urbani  PP.  Till, 
similiter  Pr?edecessoris  Xostri  promulgatis  die  T.  Septembris  MDCXXTI.  eorumque 
declarationibus  nuper  superadditis  a  pias  >nem.  Benedicto  XIII.  etiam  Prsedecessore 
Xostro  in  Appendice  Concilii  Romani ;  aliisque  Apostolicis  Constitutionibus,  hac  de 
re  alias  editis,  et  innovatis,  et  praesertim  Constitutioni  pias  mem.  Gregorii  XV.,  quse 
incipit :  Inscrutabili,  sub  Datum  Romae  apud  Sanctum  Petrum  Anno  Incarnationis 
Dominicae  MDCXXII.  nonis  Februarii. 

§  5.  Districte  pnecipimus,  et  mandamus,  ne  deinceps  ab  exequutione  Decretorum 
dicti  Sac.  Concilii  Tridentiui,  in  omnibus  illis  causis,  et  negotiis,  in  quibus  exequutio, 
liujusmodi  Episcopis,  et  Locorum  Ordinariis,  etiam  uti  Sedis  Apostolicfe  Delegatis, 
ab  eodem  Sacro  Concilio,  vel  dictis  Apostolicis  Constitutionibus,  appellatioue,  vel 
inhibitione  quacumque  postposita  commissa  est,  appellatio  aliqua  in  Tribunalibus  prte- 
dictis  recipiatur,  vel  Inhibitiones,  Citationes  generales,  vel  speciales,  cum  Commissi- 
one  inserta,  Monitoria,  et  alia  hujusmodi,  per  quae  dictorum  Decretorum  exequutio 
retardetur,  aut  Processus  ad  ulteriora  in  eadem  exequutione  su§pendatur,  aut 
impediatur,  quoquo  modo  concedantur. 


Appendix,  267 


§  6.  Itaque  a  quibuscumque  Mandatis,  prohibitionibus,  provisionibus,  et  statutis 
tarn  in  Visitatione,  quam  extra,  pro  Divino  Cultu  conservando,  et  augendo  et 
preesertim  circa  ea  quse  observanda,  et  evitanda  sunt  in  celebratione  Missse,  aut  alio 
quovis  modo  respiciunt  exequutionem  Decreti  Sac.  Concilii  Sess.  21  de  Reform,  cap. 
8.,  et  sess.  22.  in  Decret.  de  observ.  et  evit.  in  celebrat.  Miss. 

Item  a  Decretis  cogeutibus  Clericos  tarn  Saeculares,  quam  Regulares,  etiam 
Monachos,  et  exemptos  ad  publicas  Processiones,  servata  tamen  forma  Constitutionis 
san.  mem.  Pii  V.,  quae  incipit :  Et  si  Mendicantium  :  Prout  etiam  a  Decretis.  et 
provisionibus  super  praecedentia  inter  Personas  Ecclesiasticas,  tarn  Sseculares,  quam 
Regulares  in  eisdem  Processionibus,  vel  associatione  Defunetoruin,  delatione  Umbel- 
la?,  et  hujusmodi :  Xecnon  super  observations  Censurarum,  etiam  Episcopalium,  et 
Festorum  Dioacesis,  juxta  dispositionem  ejusdem  Sacri  Concilii  sess.  25,  de  Regular. 
cap.  12  et  cap.  13. 

§  8.  Item  in  omnibus  iis,  quae  ad  curam  Animarum,  et  Sacramentorum  adminis- 
trationem  quoquo  modo  pertinent,  et  prsesertirn  adversus  Monitiones,  Censuras,  aut 
alias  provisiones,  per  quas  Parochi  aut  alii  Curam  animarum  exercentes,  diebus 
saltern  Dominicis,  et  Festis  Solemnibus  Plebes  sibi  commissas  salutaribus  verbis 
pascere  compelluntur,  docendo  ea,  quae  ad  salutem  necessaria  sunt,  juxta  Decretum 
-  :  Concilii  sess.  5.  de  Reform,  cap.  2. 

§  9.  Item  adversus  deputationem  Yicariorum  etiam  perpetuorum,  cum  assig- 
natione  congruse.  per  quos  Cura  Animarum  exerceatur,  quoties  plura  Beneficia 
curata  ex  Dispeusatione  Apostolica  ab  aliquo  obtineantur;  vel  quoties  eadem 
Beneficia  Curata  Cathedralibus,  Collegiatis,  seu  aliis  Ecclesiis,  vel  Monasteriis, 
Beneficiis,  seu  Collegiis,  aut  piis  Locis  quibuscumque  perpetuo  unita,  et  annexa 
reperiuntur;  juxta  pnescriptum  dicti  Sacri  Concilii  sess,  7.  de  Reform,  cap.  5.,  et 
cap.  7.,  et  juxta  Constitutionem  san.  mem.  Pii  V.,  quae  incipit :  Ad  exequendum. 

j;  10.  Item  adversus  Yisitationem  Beneficiorum  Curatorum,  ut  supra,  perpetuo 
unitorum,  necnon  quammcumque  Ecclesiarum  quomodolibet  exemptarum,  prout 
etiam  adversus  Decreta,  et  provisiones  ab  Ordinario  capiendas,  ut  quae  in  eis  repara- 
tione  indigent,  reparentur,  et  Cura  Animarum,  si  qua  illis  imminet,  aliisque  debitis 
obsequiis  minime  defraudentur,  juxta  dispositionem  Sacri  Concilii  eadem  sess.  7.  de 
Reform,  cap.  8.,  et  sess.  21.  cap.  7. 

£  11.  Item  a  Decretis,  seu  Mandatis,  per  quaj  Episcopi,  etiam  uti  Apostolicte 
Sedis  Delegati,  in  Ecclesiis  Parochialibus,  aut  Baptismalibus,  in  quibus  Populus  ita 
numerosus  est,  ut  unus  Rector  non  possit  sufficere  Ecclesiasticis  Sacramentis 
ministrandis,  et  Cultui  Divino  peragendo,  cogant  Rectores,  vel  alios,  ad  quos 
pertinet,  sibi  tot  Sacerdotes  ad  hoc  munus  adjungere,  quot:sufficiant  ad  Sacramenta 
exhibenda,  et  Cultum  Divinmn  celebrandum :  Aut  etiam  invitis  Rectoribus,  proce- 
dant  ad  constitutionem  novarum  Parochiarum,  cum  assignatione  competentis 
portionis,  ubi  ob  locorum  distantiara,  sive  difficultatem,  Parochiani,  sir.e  magno 
iucommodo,  ad  percipienda  Sacramenta,  et  Divina  Officia  audienda  accedere  non 
possunt.  vel  denique  propter  paupertatem,  et  in  creteris  casibus  a  jure  pennissis, 
deveniant  ad  uniones  perpetuas  aliorum  Beneficiorum  simplicium,  non  tamen  Regu- 


268  Appendix. 

larium,  juxta  dispositionem  Sacri  Concilii  sess.  21.  de  Reform,  cap.  4.,  et  cap.  5..  et 
sess.  24.  similiter  de  Reform,  cap.  13. 

§  12.  Item  a  deputatione  Coadjutorum,  aut  Yicariorum  pro  tempore,  vel  aliis 
provisionibus  ab  Episcopo  capiendis,  etiam  tamquam  Apostolicae  Sedis  Delegate, 
quando  illiterati,  et  imperiti  Parochialium  Ecclesiaram  Rectores  sacris  minus  apt! 
sunt  officiis,  cum  assignatione  partis  fructuum  pro  sufficient!  illorum  victu :  Necnon 
a  suspensione,  atque  etiam  a  privatione  illorum,  qui  turpiter  et  scandalose  vivunt,  et 
postquam  praemoniti  sunt,  in  sua  nequitia  incorrigibiles  perseverant,  juxta  prsescrip- 
tum  ejusdem  Concilii  sess.  21.  de  Reform,  cap.  6. 

§  13.  Item  a  translatione  Beneficiorum  simplicium,  etiam  Jurispatronatus,  ex  Ec- 
clesiis,  quae  vetustate,  vel  alias  collapsa?  sint,  et  ob  eorum  inopiam  nequeant  install  - 
rari,  vocatis  iis,  quorum  interest,  in  Matrices,  aut  alias  Ecclesias,  cum  omnibus 
emolumentis,  et  oneribus :  prout  etiam  a  Decretis  cogentibus  Patronos,  Rectores, 
Beneficiatos,  aut  Parochianos,  sive  Populum,  ad  refectionem,  et  instaurationem  Ec- 
clesiarum  Parochialium  servata  forma  Sacri  Concilii  sess.  21.  cap.  7. 

§  14.  Item  a  censuris,  sequestratione,  et  subtractione  fructuum,  aut  aliis  quibus- 
cumque  provisionibus,  pro  cogendis  ad  residentiam  Parochis,  cancrisque  omnibus, 
quibus  Cura  Animarum  incumbit,  juxta  Decretum  ejusdem  Sacri  Concilii  sess.  2?>.  de 
Reform,  cap.  1. 

§  15.  Item  a  denegatione,  revocatione,  suspensione,  vel  restrictione,  et  limitatione 
facultatis  audiendi  Confessiones,  respectu  eorum,  qui  Parocliiale  Beneficium  non 
obtinent,  etiam  si  fuerint  Regulares,  pro  excipiendis  Confessionibus  Saeculariura, 
juxta  ordinationem  Sacri  Concilii  sess.  23.  cap.  15.,  et  Prcedecessorum  Xostrorum 
Constitutiones,  ac  praecipue  illam  f el.  rec.  Clementis  X.,  quae  incipit :  Superna. 

§  16.  Item  in  illis  Civitatibus  aut  locis,  ubi  vel  Parochiales  Ecclesise  certos  non 
habenl  fines,  nee  earum  Rectores  proprium  Populum,  quem  regant,  sed  promiscue 
petentibus  Sacramenta  administrant,  vel  etiam  nullse  sunt  Parochiales,  a  divisione, 
seu  distinctione  Parochiarum  earumque  ordinatione,  sive  institutione  in  titulum 
perpetuum  juxta  Decretum  Sacri  Coucilii  sess.  24.  de  Reform,  cap.  13. 

§  17.  Item  a  deputatione  Vicarii,  vel  Oeconomi,  cum  assignatione  Congruje,  pro 
tempore,  quo  vacat  Ecclesia  Parochialis  :  Prout  etiam  ab  indictione  Concursus, 
relatione  examiuatorum,  necnon  prseelectione,  et  provisione  Episcopi  in  eodem  Con- 
cursu  juxta  definitionem  Sacri  Concilii  eadem  sess.  24.  de  Reform,  cap.  18. 

§  18.  Item  a  Mandatis,  seu  Decretis  inhibentibus  praxlicationem,  vel  publicas 
lectiones,  aut  coercentibus,  vel  punientibus  quoscumque,  etiam  exemptos  tarn  Siecu- 
lares,  quam  Regulares,  qui  in  alienis  Ecclesiis,  quae  suorum  Ordinum  non  sunt,  abs- 
que  Episcopi  licentia,  et  in  Ecclesiis  suis,  aut  suorum  Ordinum,  non  petita  illius 
benedictione,  aut  ipso  contradicente,  praadicare  praesumpserint ;  juxta  Decretum 
Sacri  Concilii  sess.  5.  de  Reform,  cap.  2.,  et  sess.  24.  similiter  de  Reform,  cap.  4.,  et 
constitutionem  pise  mem.  Gregorii  XV.,  quae  incipit :  Inscrutabili  §  fin.  una  cum 
declarationibus  contends  in  Constit.  Clementis  PP.  X.,  quae  incipit:  Superna. 

§  19.  Et  generaliter  in  omnibus  iis,  qua;  pertinent  ad  Curam  Animarum,  ct  rectam 
Sacramentorum  administrationem,  adversus  visitationem,  correctionem,  ccercitionem 


Appendix.  269 


et  quascumque  alias  provisiones  Kpiscopi  Dioecesani,  etiam  quoad  exemptos,  sive 
Sseculares,  sive  Regulares,  juxtalaudatamConstitutionem  Gregorii  XV.,  qureincipit: 
Instructabili. 

§  20.  Item  adversus  quascumque  Provisiones,  et  Decreta  pro  conservanda,  aut 
restituenda  clausura  Sanctimonialium,  aut  pro  correctione,  seu  punitione  eorum,  qui 
circa  Pcrsonas  intra  Monasteria  degentes,  aut  circa  Clausuram,  vel  circa  Bonormn 
administrationera  deliquerint.  Prout  etiam  ab  examine  pro  approbatione,  vel  repro- 
batione  Confessariorum  sive  Regularium,  sive  Sajcularium,  quomodocumque  exempt- 
orum,  ct  tarn  ordinariorum,  quam  extraordinariorum,  pro  excipiendis  confessionibus 
Monialium,  etiam  Regularibus  subjectarum.  Itidemque  a  Decretia  vel  aliis  quibus- 
cumque  provisionibus  cogentibus  Administratores,  sive  Sajculares,  sive  Regulares 
quomodolibet  exemptos,  ad  reddeudam  singulis  anuis  rationem  Bonorum  ad  Monaa- 
teria  Sancti-Monialium  hujusmodi  pertinentium :  Ac  demum  a  quibuscumque  De- 
cretis  super  amotione  Capellanorum,  Sacristarum,  et  aliorum  quorumcumque 
Officialium,  et  Ministrorum,  tarn  Ssecularium,  quam  regularium  ipsis  Monialibus,  ve] 
eorum  Ecclesiis  inservientium,  juxta  dispositiouem  Sacri  Concilii  sess.  25.  de  Regu- 
lar, et  Monial.  cap.  5.,  cap.  9.,  et  cap.  10.  servata  tamen,  quoad  Regulares,  et  exemp- 
tos, forma  prredictaa  Constitutionis  rec.  mem.  Gregorii  XV.,  quae  incipit:  Inscruta- 
bili. 

§  21.  Item  adversus  pastoralem  Visitationem  Dioacesis,  et  prsesertim  Monasteri- 
orum,  Commendatorum.  Abbatiarum,  Prioratuum,  et  Praepositurarum,  in  quibus  non 
viget  Regularis  Obscrvantia,  necnon  Beneficiorum,  tarn  Curatorum,  quam  non  Cura- 
torum,  Stecularium  et  Regularium  qualitercumque  commendatorum,  etiam  exemp- 
tomm:  Prout  etiam  ab  exequutione  eorum,  quse  in  ipsa  Visitatione  maudata, 
decreta,  aut  judicata  fuerint.  Necnon  similiter  a  quibuscumque  Decretis,  Provision- 
ibus, etiam  extra  Visitationem,  pro  conservatione  vel  Reparatione  Ecclesiasticae 
Discipline,  quoad  vitam,  mores,  et  honestatem  quorumcumque  Clericorum,  luxuir., 
commessationes,  choreas,  lusus,  crimina,  et  saecularia  negotia  fugienda,  atque 
evitauda ;  juxta  plura  Decreta  dicti  Sacri  Concilii,  et  pnesertim  sess.  6.  de  Reform, 
cap.  4.  sess.  13.  cap.  1.  sess.  14.  cap.  4.  sess.  21.  cap.  8.  sess.  22.  cap.  1.,  et  cap.  8., 
et  sess.  24.  cap.  10.  ad  formam  tamen  Decretorum  Sac.  Congr.  Episcoporum  de 
mandate  san.  mem.  dementis  VIII.  editorum  Ann.  MDC. 

?:  22.  Item  a  Decretis  cogentibus  Pra?sentatos,  electos,  vel  nominates  a  quibusvis 
Ecclesiasticis  Personis,  etiam  Nostris  et  Sedes  Apostolicie  Nuntiis,  ad  qufevis  Ec- 
clesiastica  Beneficia,  ad  se  subjiciendum  examini  ordinarii,  antequam  instuantur, 
confirmentur,  vel  admittantur,  quaemadmodum  cavetur  sess.  7.  de  Reform,  cap.  13. 

.5  23.  Item  a  denegatione  Sacrorum  Ordinum,  vel  adscensus  ad  alios  majores ; 
prout  etiam  adversus  suspensionem  ab  Ordinibus  jam  susceptis,  ob  crimen  occultum, 
sive  ex  informata  conscientia,  juxta  dispostionem  Sacrii  Concilii  sess.  14.  de  Reform, 
cap.  1.,  et  cap.  3.,  et  sess.  21.  cap.  1.,  et  sess.  23.  cap.  16. 

§  24.  Item  a  pra?fixione  termini,  intra  quern  Regularis  Episcopo  non  subditus,  qui 
intra  claustra  Monasterii  degat,  et  extra  ea  ita  notorie  deliquerit,  ut  Populo  scandalo 
sit.  a  suo  Superiore  puniri  debeat,  ac  de  punitione  ipse  Episcopus  certior  fieri,  juxta 


2  70  Appendix. 

Decretum  Sacri  Concilii  sess.  25.  de  Regular,  cap.  14.,  et  Const,  fel.  recor.  dementis 
PP.  Till.,  qua;  incipit:  Suscepti  muneris:  Necnon  adversus  punitionem,  et  cor- 
rectiouem  eorumdem  Regularium,  qui  circa  Personas  intra  septa  degentes,  aut  circa 
Clausuram  ipsain  deliquerint;  juxta  prjedictam  Constitutionem  Gregorii  XT.,  quae 
incipit :  Inscrutabili. 

§  25.  Item  a  Censuris,  aut  aliis  provisionibus  contra  Concubinarios,  et  prsesertim 
Clericos  etiam  retinentes  domi,  aut  extra,  Mulieres  suspectas,  juxta  prsescriptum 
Sacri  Concilii  sess.  24.  de  Reform.  Matrim.  cap.  8.,  sess  26.  de  Reform,  cap.  14. 

§  26.  Item  adversus  privationem  Privilegii  Fori,  et  alias  provisiones  contra  Cleri- 
cos non  incedentes  in  habitu,  et  tonsura,  et  in  aliis  casibus  a  Sacro  Concilio  prae- 
scriptis  sess.  14.  de  Reform,  cap.  6.,  et  sess.  23.  similiter  cap.  6. 

§  27.  Prout  etiam  ab  examine,  approbatione,  vel  reprobatione  Patrimonii  Sacrii, 
Pensionis  Ecclesiasticse,  aut  beneficii,  quoad  Clericos  protnovendos  ad  Sacros  Ordi- 
nes ;  juxta  dispositionem  ejusdem  Concilii  sess.  21.  de  Reform,  cap.  2. 

§  28.  Item  adversus  convocationem  Capituli,  quarn  faciat  Episcopus  ad  aliquid  de- 
liberandum,  et  juxta  vota  ipsorum  Capitularium  concludendum,  quoties  de  re  ad  su- 
um,  vel  suorum  commodum  spectante  non  agatur,  juxta  Decretum  Sacri  Concilii 
sess.  25.  de  Reform,  cap.  6. 

§  29.  Item  a  Mandatis,  seu  Decretis  super  conversione  tertiaj  partis  fructuum,  et 
quorumcumque  proventuum,  et  obventionum,  tarn  Dignitatum,  quam  Canonicatuum 
Personatuum,  portionum,  et  officiorum,  in  distributiones  quotidianas,  earumque  divi- 
siones  inter  Dignitates  obtinentes,  et  cseteros  Divinis  interessentes,  in  Ecclesiis  tarn 
Cathedralibus,  quam  Collegiatis,  in  quibus  nullse  eunt  distributiones  hujusmodi  quo- 
tidiana;,  vel  ita  tenues,  ut  versimiliter  negligantur ;  juxta  Constitutionem  ejusdem 
Concilii  sess.  21.  de  Reform,  cap.  3.,  et  sess.  22.  similiter  de  Reform,  cap.  3. 

§  30.  Item  adversus  exercitium  facultatum  Episcopis  competentium  super  execu- 
tione  omnium  piarum  dispositionum,  tarn  in  ultima  voluntate,  quam  inter  vivos.  in 
casibus  a  Jure  concessis,  juxta  dispositionem  Sacrii  Concilii  sess.  22.  de  Reform. 
cap.  8. 

§  31.  Item  a  Tisitatione  Hospitalium,  Collegionim  quorumcumque,  et  Confrater- 
nitatum  Laicorum,  Eleemosvnarum,  Montium  Pietatis,  sive  Charitatis,  et  omnium 
Piorum  Loconun,  quomodocumque  nuncupatorum,  etiamsi  eorum  Cura  ad  Laicos 
pertineat,  aut  exemptionis  Privilegio  sint  nmnita :  Ac  denique  a  cognitione,  et  exe- 
quutione  eorum  omnium,  qua?  ad  Dei  Cultum,  aut  animarum  salutem,  seu  Pauperes 
sustentandos  institute  sunt  juxta  dictum  Decretum  Sacri  Concilii  sess.  22.  de  Re- 
form, cap.  8. 

§  32.  Item  a  Decretis,  seu  Mandatis  cogentibus  Administratores,  tarn  Ecclesiasti- 
cos,  quam  Laicos,  etiam  exemptos.  Fabrica?  cujusvis  Ecclesia?,  etiam  Cathedralis 
Hospilalis,  Confraternitatis.  Eleemosyna;,  Montis  Pietatis.  et  quorumcumque  Piorum 
locorum,  ad  reddendam  singulis  annis  ipsi  Ordinario  rationem  sure  admiuistrationis, 
nisi  aliud  in  institutione  et  ordinatione  talis  Ecclesia?,  seu  Fabric*  expresse  cautum 
fuerit;  juxta  Decreta  Sacri  Concilii  sess.  7.  de  Reform,  cap.  15.,  sess.  22.  cap.  9, 
et  sess.  25.  cap.  8. 


Appendix.  271 

§  33.  Item  a  Decretis  compellentibus  Notaries,  etiam  Apostolica,  Imperiali,  aut 
Regia  auctoritate  creates,  et  scribentes  in  Causis  Ecclesiasticis,  vel  Spiritualibus, 
ad  se  subjiciendum  examini,  Eorumque  remotione,  vel  suspensione  in  casu  delicti, 
vel  irnperitite  ;  juxta  prsescriptum  Sacri  Concilii  dicta  sess.  22.  cap.  10. 

§  34.  Item  ab  erectione  Seminarii,  et  taxations  quarumcumque  Dignitatum,  Per- 
sonatuum,  Officiorum,  Prsebendarum,  Portionum,  Abbatiarum,  et  Prioratuum  cujus- 
cumque  Ordinis,  etiam  Regularis,  Hospitalium,  quse  dantur  in  titulum,  vel  adminis- 
trationem,  et  Beneficiorum  quorumcumque,  etiam  Regularium,  etiam  Jurispatronatus, 
etiam  exemptorum,  etiam  nullius  Dicecesis,  vel  aliis  Ecclesiis  Monasteriis,  Hospita- 
libus,  et  aliis  quibusvis  Locis  piis,  etiam  exemptis,  annexorum,  ac  quorumcumque 
aliorum  Ecclesiasticorum  redituum,  seu  proventuum  ad  Fabricas  Ecclesiarum,  Con- 
fraternitates,  et  Monasteria  omnia,  non  tamen  Mendicautium,  pertinentium,  necnon 
Decimarum  quacumque  ratione  ad  Laicos,  atque  etiam  Milites  cujuscumque  Militije 
aut  Ordinis,  Hierosolymitano  excepto,  spectantium,  pro  ejusdem  Seminarii  manuten- 
tione :  prout  etiam  ab  unione.  et  applicatione  aliquot  Beneficiorum  simplicium  ;  nec- 
non a  Decretis  cogentibus  eos,  qui  Scholasterias  obtinent,  vel  quibus  lectionis,  vel 
Poctrinse  munus  est  annexum,  ad  docendum  per  se  ipsos,  vel  idoneos  substitutes  ;  et 
generaliter  a  Mandatis  et  provisionibus,  quse  quoquo  modo  respiciunt  Curam,  direc- 
tionem,  et  administrationem  Seminarii,  plenamque  exequutionem  Decreti  editi  a  Sacro 
Concilio  super  Collegio  Pueroruin  in  singulis  Cathedralibus  instituendo,  sess.  23.  de 
Reform,  cap.  18. 

§  35.  Item  a  Mandatis,  seu  Decretis  cogentibus  Oeconomos,  Yicarios  Capitulares, 
ad  reddendam  rationem  Administratiouis  per  eos  gestae  Sede  Episcopali  vacante, 
juxta  prrescriptum  Sacri  Concilii  sess.  24.  de  Reform,  cap.  16. 

§  36.  Item  a  comminationeexcommunicationis  a  Jure  latse,  et  a  Sententia  excom- 
municationis  late  ab  homine  suspensionis,  et  interdicti,  nisi  appellatio  fuerit  inter- 
posita  ex  capite  nullitatis :  Et  e  converso  a  Sententia  absolutionis  ab  eisdem  Censu- 
ris  Ecclesiasticis. 

§  37.  Et  generaliter  ab  exequutione  aliorum  quorumcumque  Decretorumdicti  Sacri 
Concilii  Tridentini,  Episcopis,  atque  Ordinariis  locorum  demandata  ab  ipso  Concilio, 
et  in  Constitutione  fel.  rec.  Pii  Papaj  IV.,  quaj  incipit:  Benedictus  Deus. 

§  38.  Yolumus,  prsecipimus  et  mandamus,  quod  ab  Archiepiscopis,  Patriarchis, 
seu  Primatibus,  aliisque  Judicibus  Ecclesiasticis,  etiam  Xostris  et  Sedis  Apostolicae 
Ximtiis,  vel  de  latere  Legatis,  etiam  Sanctfe  Romanae  Ecclesise  Cardinalibus.  atque 
etiam  Camerse  nostne  general!  Auditore,  Signature  Justitise  Pnefecto,  caeterisque 
Judicibus  Romante  Curi;c,  eorumque  Vicariis,  et  officialibus,  Citatioues  generales, 
\~el  speciales  cum  Commissione  inserta,  Monitoria,  et  alia  hujusmodi  cum  Inhibitione 
per  quam  exequutio  Decretorum,  Mandatorum  et  provisionum  hujusmodi  retardetur, 
suspendatur,  aut  impediatur,  minime  concedantur,  et  quatenus  nunc,  aut  imposte- 
rum  concessa  fuerint,  nullatenus  inliibeant,  atque  ad  Episcopis,  aliisque  Locorum 
Ordinariis  impuue  sperni  possint ;  quacumque  consuetudine  etiam  immemorabili,  vel 
quovis  Privilegio.  aut  stylo  concedendi  Inhibitiones  in  Causis  pra?dictis,  tametsi 
temporarias,  penitus  exclusis.  Xos  enim  Citationes,  et  Monitoria,  aliter  quam  ut 


272  Appendix. 

pnefertur,  concessa,  vcl  imposterum  concedenda.  nulla,  atqse  irrita  declaramus,  et 
pro  nullis,  atque  irritis  haberi  volumus,  et  mandamus :  Decernentes,  quod  adversus 
Decreta,  Mandata,  et  Provisiones  ejusmodi,  quas,  vel  quse  ab  Episcopis,  aliisque  Lo- 
corum  Ordinariis  fieri,  vel  capi  contigerit  in  Causis,  et  negotiis  pnedictis,  vel  simplex 
dumtaxat,  et  extra  judicial  is  Kecursus  per  viam  supplicis  libelli,  ad  Xos,  et  Successo- 
res  Nostros  Romanes  Pontifices,  vel  respective,  et  juxta  Causarum  naturam,  et 
qualitatem,  Appellatio  ad  quos  de  Jure,  in  solo  devolutivo,  et  sine  retardatione.  vel 
praejudicio  legitimse  exequutionis,  recipi,  et  admitti  possit. 

§  39.  Quoniam  vero  in  hisce  ipsis  negotiis,  et  Causis,  in  quibus  Inhibitiones  Can- 
onicam  exequutionem  impedientes,  aut  suspendentes,  concedi  non  debent,  dari  pos- 
sunt  casus,  qui  per  ipsum  Sacrum  Concilium  Tridentinum,  vel  juxta  ejus  Mentem, 
per  Apostolicas  Constitutiones,  et  Sacrarum  Congregationum  declarationes.  aut 
communem  Doctorum  Sententiam,  a  preefata  general!  regula  de  non  concedendis 
Inhibitionibus,  eisque  posthabendis.  excipiuntur,  quique  ut  plurimum  non  aliter. 
quam  prudenti  Judicis  arbitrio  secundum  particulares  Facti  circumstantias  ffistimari 
possunt :  Hinc  Nos,  ne  sub  ejusmodi  praetextu,  Inhibitiones,  ut  supra  prohibitee, 
vulgo  et  sine  ullo  delectu  etiam  in  Casibus  non  exceptis  concedantur :  Statuimus 
t  ma  ndamns,  quod  in  dictis  Causis,  et  negotiis  superius  expressis,  Metropolitani, 
Patriarchs,  Primates  aliique  Judices  predicti,  et  pnesertim  Cameras  nostne  generalis 
Auditor,  ejusque  Locumtenentes,  et  Signatures  Justitite  Prfefectus.  ejusque  Auditor, 
ad  quos  in  contingenti  casu  pro  obtinenda  Inhibitione  Recursum  haberi  contigerit, 
etiamsi  asseratur,  casum  ilium  a  Sacro  Concilio,  vel  Apostolicis  Constitutionibus, 
quacumque  de  Causu  exceptum  esse :  Xihilominus  literas  Citatorias,  vel  Monitorias 
cum  Inhibitione  hujusmodi  non  concedant.  nisi  prius  ex  facti  circumstantiis.  in  sup- 
plici  libello  a  Parte  recurrente  clare  ac  dilucide  exponendis,  et  cum  aliquo  documento 
semiplene  saltern  verificandis,  eisdem  summarie  apparuerit,  casum  ilium  esse  de  ex- 
ceptis, et  propterea  Episcopo,  vel  Ordinario  Loci  inhibendum  esse,  ne  ad  ulteriora 
procedat ;  Tune  enim,  et  non  alias,  et  postquam  ipsi  Judises.  quorum  consientiam 
hac  in  parte  oneramus,  super  dicti  supph'ci  libello  manu  sua  rescripserint,  quod  Inhi- 
bitio  concedi  potest,  libellusque  cum  rescripto  ejusmodi  in  Actis  productus  fuerit, 
diligenter  ibidem  custodiendus,  et  asservandus,  licet  eorum  Xotariis.  sive  Actuariis 
literas  Citatorias  cum  dicta  Inhibitione  expedire  et  Patri  recurreuti  tnulciv.  i:a  ta- 
men,  ut  in  earum  calce  expresse  adjiciatur  sequens  clausula  ;  "  Nos  enim.  attends 
Juribus,  et  supplici  libello  Xobis  praesentatis  atque  in  Actis  exhibitis.  sic.  ut  pnefer- 
tur, inhibendum  esse,  speciali  Rescripto  mandavimus."  Alias  litera?  ejusmodi  sine 
tali  clausula  nullam  vim  inhibendi  habeant  in  casibus  pra?dictis. 

§  40.  Et  nihilominus  si  Notarii,  sine  dicto  speciali  Rescripto  super  supplici 
libello,  aut  sine  productione  illius  in  actis,  aut  sine  prsedicta  clausula,  Citationes 
ullas,  aut  Monitoria  cum  inhibitione.  sub  quocnmque  prajtextu,  seu  colore,  expedire 
ac  tradere  prsesumpserint,  etiamsi  illfe,  ant  ilia  a  Judice  subscripta  fuerint,  poenam 
infamise,  et  perpetua?  inhabQitatis,  ad  Officium  Notarii  in  Causis  Ecclesiasticis  exer- 
cendum  et  quoad  illos  Camerse  Nostne  generalis  Auditoris,  aut  aliorum  Romanes 
Curiae  Judicum  superius  expressorum,  etiam  quinquaginta  ducatonim  auri  de  Camera, 


Appendix.  273. 

pro  una  medietate  Camera  Nostrse  Apostolicse,  et  pro  alia  ipsi  Parti  recurrent!,  et  iu 
causa  interesse  habenti,  sin  minus  alicui  ex  Locis  Piis,  arbitrio  Nostro,  Xostrorum- 
que  Successorum  destinando,  applicandam,  ipso  facto  incurrant. 

§  41.  Ad  haec,  similiter  inJiaerentes  disposition!  ejusdem  Sacri  Coneilii  sess.  1.  de 
Reform,  cap.  14.,  et  sess.  14.  cap.  5.,  necnon  etiam  decreto  Piae  mem.  Benedict! 
XIII.  hac  in  re  promulgate  inter  ejus  additiones  ad  Decreta  Urbani  Papae  VIII.  in 
appendice  ad  Concilium  Romanum,  volumus,  et  mandamus,  quod  Clerici  Saeculares. 
aut  Regulares  extra  Monasterium  degentes,  quomodolibet  exempti,  in  Civilibus  Causis 
Mercedum.  et  miserabilium  Personanim,  etiamsi  certum  Judicem  a  Sede  Apostolica 
deputatum  in  partibus  habeant :  In  aliis  vero,  si  ipsum  Judicem  non  habuerint, 
coram  Locorum  Ordinariis,  tamquam  ab  ipsa  Sede  delegatis,  conveniri  in  prima 
in<tantia,  et  Jure  medio  ad  solvendum  debitum  cogi  possint. 

§  42.  Quo  vero  ad  Personas  non  exemptas,  inha^rendo  similiter  dispositioni  ejus- 
dem Sacri  Coucilii  sess.  13.  de  Reform,  cap.  1.,  et  sess.  22.  cap.  7.,  et  sess.  24.  cap. 
20.  necnon  supradictis  Decretis  generalibus  Congregations  Episcoporum  editis  anno 
MDC.  cum  novissimis  additionibus,  seu  declarationibus  Pise  mem.  Benedict!  XIII. 
in  Appendice  Concilii  Roman! ;  Tolumus,  statuimus,  et  mandamus,  quod  Causae 
omnes,  tarn  Civiles,  quam  Criminalis,  ad  Forum  Ecclesiasticum  pertinentes.  exceptis 
Privilegiatis,  quad  ex  eodem  Concilio,  vel  alias  juxta  Canonicas  Sanctiones  apud 
Nos.  et  Sedem  Apostolicam  tractari  possunt,  aut  debent,  coram  Ordiuariis  Locorum 
dumtaxat,  in  prima  Instantia  cognoscantur,  neque  a  Metropolitanis,  Patriarchis,  aut 
Primatibus,  aliisque  Judicibus  Ecclesiasticis,  etiam  Nostris  et  Sedis  Apostolicas 
Xuntiis.  vel  de  latere  Legatis,  aut  Camera?  Nostree  generali  Auditore,  et  cseteris 
quibuslibet  Curife  Nostrae  Judicibus  ad  se  avocari,  vel  aliis  committi  possint,  nisi 
per  viam  legitimse  appellationis,  et  in  casibus  ut  supra  non  prohibitis,  ad  ipsorum 
Tribunalia  deferantur, 

§  43.  Appellationes  autem  non  recipiantur,  neque  inhibitiones  vigore  illarum 
concedantur,  nisi  prius  constiterit,  quod  nedum  per  legitimam  Personam,  et  intra 
legitima  tempora  vere  appellatum  fuerit;  Sed  etiam,  quod  appellatum  fuerit  a 
Sententia  definitiva,  vel  habente  vim  definitive,  aut  a  gravamine,  quod  per  definiti- 
vam  Sententiam  reparari  non  possit :  Idque  per  publica  Documenta.  qua?  realiter  in 
Actis  exhibeantur;  Tune  enim,  etnon  antea,  Judici,  ad  quern  appellatum  fuerit,  in 
Causa  se  intromittere.  citationes  et  inhibitiones  concedere  liceat ;  dummodo  tamen 
concedantur  cum  inscriptione  tenoris  Sententise,  aut  Decreti  definitivi,  seu  vim 
defimtivse  habentis,  vel  damnum  per  definitivam  irreparabile  inferentis.  Alias 
citationes.  Processus.  et  inde  sequuta  quaecumque,  sint  ipso  jure  nulla,  atque  impune 
sperni  possint. 

§  44.  Quod  si  appellans  asserat,  Sententi;e,  aut  Decreti  Exemplum  authenticum 
culpa  Judicis  a  quo,  vel  Notarii,  sive  Actuarii,  habere  non  posse,  turn  saltern  copiam 
simplicem  Sententia1.  seu  Decreti,  in  Actis  producere  teneatur,  ejusque  tenori.  in 
literis  Inhibitorialibus  inserto  adjicienda  erit.  prout  adjici  volumus.  et  mandamus,  in 
eanim  corpore  expressa  conditio :  ••  Quatenus  tamen  tenor  insertus  vere,  et  in  sub- 
stantialibus  cum  Original!  concordet,  eodemque  Orisrinali  prresentes  literre  sint  ia 


2  74  Appendix. 

teinpore  posteriores,  alioquin  nullae,  et  irrifce  censeantur : "  Et  si  secus  factum 
f uerit,  inhibitiones  aliter  concessas  nullatenus  afficiant.  et  Xotarii.  sive  Actuarii,  qui 
illas  expediverint,  incidant  in  pcenas  superius  expressa.s. 

§  45.  Cum  vero  a  gravamine,  quod  per  definitivam  reparari  nequit,  appellatum 
f  uerit,  si  quidem  res  sit  de  carceratione  jam  aequuta  cum  Mandate  verbali.  non  aliter 
expediri  poterunt  Inhibitiones  vigore  Appellationis.  quam  constito  prius  de  ipsa  car- 
ceratione per  depositioiiem  saltern  duorum  Testium.  Interim  tamen  Appellans  in 
«odem,  quo  reperitur,  carcere  permanebit,  donee  aliter  ser.  ser.  judicatum  fuerit.  Ubi 
vero  agatur  de  censuris  jam  prolatis,  vel  de  comminatione  Carcerationis,  Torturje,  aut 
Censurarum,  observetur  omnino  dispositio  dictorum  Decretorum  Cougregationis  Epis- 
coporum  sub  rec.  mem.  Clemente  Till.,1  juxta  additiones,  et  declarationes  piie  mem. 
Benedicti  XIII.2 

§  46.  Ulterius  in  prsedictis  Causis  in  prima  Instantia  pendentibus,  vel  aliis  supe- 
rius expressis,  in  quibus  non  admittitur  appellatio  in  suspensive.  Citationes.  quae  ex- 
pediri  solent  coram  Cardinali  Signature  Justitia?  Pnefecto,  vel  ad  effectum  comparen- 
di,  vel  pro  adeundo  eamdem  Signaturam.  tametsi  ab  ejus  Auditore  subscriptas.  vim  in- 
hibendi  nullatenus  sortiri  posse  volumus.  easque  ad  pra-dietos  alios  dumtaxat  effec- 
tus,  comparendi  scilicet,  vel  adeundi  Signaturam,  expcditas  censeri.  non  autem  ad 
retardandam  exequutionem,  vel  suspendendum  processum  ad  ulteriora. 

§  47.  Denique  quoad  Causas  privilegiatas,  qua?,  ut  pnefertur.  in  prima  etiam  In- 
stantia apud  Xos,  et  Sedem  Apostolicam  tractari  possunt.  nihil  ex  antique  mutandum 
esse  volumus,  sed  Monitoria  in  illis  coram  Camene  Xostra-  generali  Auditore.  vel 
ejus  Locumteneutibus,  prout  hactenus  laudabiliter  observatum  est,  expedienda  esse. 
juxta  prsescriptum  Apostolicarum  Coustitutionum,  et  pnesertim  fel.  mem.  Pauli  T. 
Prsedecessoris  Nostri  in  Constitutione.  qtue  incipit :  Universi,  necnon  pr.vdictarum 
additionum,  et  declaratiomun  Benedicti  XI1L,  exceptis  tamen  Monitoriis  iutimandis 
ultra  Montes,  in  quibus  ad  evitanda  scandala.  et  litigantium  incommoda,  volumus 
omnino  renovari,  et  observari  stylum.  qui  olim  in  eo  Tribunal!  vigebat,  id  est.  quod 
ad  ejusmodi  Monitoriorum  expeditionem  non  aliter  procedatur.  quam  oblato  prius  ipsi 
Auditor!,  vel  alteri  ex  ejus  Locumtenentibus,  coram  quo  Monitorium  expecliendum 
erit.  supplici  Libello  universam  Facti  speciem  clare.  et  dilucide  continente,  et  pra?vio 
etiam  ejusdem  Judicis  rescripto,  quod  monitorium  expediri  possit,  penes  causa* 
notarium  vel  actuarium  diligenter  custodiendo.  Etsi  aliter,  quam  pra*ferttir.  et  abs- 
que  dicto  supplici  libello,  ac  special!  judicis  rescripto  dicta  Monitoria  ultra  Montes 
imimanda  expedite  fuerint,  Xotarius,  sive  Actuarius,  et  Substitutus,  qui  ilia  expedi- 
vent,  ipso  facto  incidat  in  prenas  superius  expres- 

§  48.  Omnia,  et  singula  hactenus  a  Xobis  disposita  ad  rectam  Judiciorum  metho- 
dum  restituendam,  eo  impensius  ab  omnibus  exacte  custodiri,  et  observari  manda- 
mus, quo  clarius  constat  hac  nostra  Constitutione  non  novas  ferri.  sed  antiquas 
instaurari  leges,  provide,  sapienterque  institutas.  et  temporum  injuria.  ac  hominum 
f  raude  obsoletas.  et  novo  Pontificiaj  auctoritatis  pnesidio  communiri  ordinem  proce- 

1  See  Appendix  III.  :  Se-?  Appendix    v. 


Appendix.  275 

dendi  in  Causis,  jamdiu  prsescriptum  Superioribus,  et  Inferioribus  Tribunalibus  a 
Sacra  Tridentia  Synodo  Congregationum  Decretis,  et  Praedecessorum  Nostrorum 
Romanorum  Pontificum  Constitutionibus,  aliisque  Ordinationibus  Apostolicis.  Ideo- 
que,  si  ipsi  Judices,  omni  semoto.  ut  par  est,  humanse  cupiditatis  affectu,  prae  oculis 
solum  habuerint,  quae  tarn  mature,  tamque  saluberrimo  sunt  constituta  et  ordinata 
consilio,  facile  eornm  quilibet  agnoscet.  quae  sui,  et  qu;e  alieni  Ministerii  partes  esse 
debeant  in  adniittendis,  ac  respective  rejiciendis  Causarum  Appellationibus  et  Inhi- 
bitionibus :  Atque  ita  fiet,  ut  non  solum  unicuique  in  suo  ordine  debita  Jurisdic- 
tionis,  et  auctoritatis  praerogativa  servetur :  Sed  etiam  ut,  exstinctis  prorsus,  ac 
redicitus  avulsis  omnium  contentionum.  et  discordiarum  seminibus,  mutuo  charitatis 
vinculo  Tribunalia  socientur.  ct  inter  ilia  recte  agendi  discipliha  Christiano  Populo 
utilis,  et  necessaria  restituatur. 

§  49.  Demum  ut,  exemplo  Nostro,  omnes  praemissorum  executioni  caute,  et  pro 
viribus  incumbant,  et  ut  praesertim  Notariis,  Tabellionibus,  et  eorum  Actuariis,  et 
Substitutis  omnis  contraveniendi  ansa  pnecidatur,  volumus,  et  expresse  mandamus, 
Processus,  et  Acta  Causarum  in  Nostra  Romana  Curia  coram  quovis  Judice  penden- 
tium,  ac  Inhibitiones,  Appellationes,  Monitoria,  aliasque  Citatoriales,  et  Inhibitoriales 
literas,  quas  ab  iisdem  Notariis,  eorumque  Substitutis,  scientibus,  vel  insciis  Judici- 
bus,  vel  alias  quomodolibet  in  posterum  expediri  contigerit,  sedulo  recognosci,  et 
examinari  per  fide  dignas  Personas  a  Nobis  opportune  deputandas,  quae  si  deprehen- 
derint,  easdem  Inliibitiones  contra  hujus  Constitutionis  formam,  et  ad  subterfugienda 
Ordinariorum,  et  Episcoporum  judicia,  quaesito  gravaminis  colore,  fuisse  perperam 
concessas,  et  expeditas,  in  eosdem  Notaries,  et  Substitutes  canonicis  poems,  aliisque 
a  Nobis  supra  expressis,  severe  pro  modo  culpae  animadvertant. 

§  50.  Decernentes  has  prtesentes  literas  semper  firmas,  validas,  et  efficaces 
existere  et  fore;  suosque  plenarios,  et  integros  effectus  sortiri,  et  obtinere,  ac  ab 
illis,  ad  quos  spectat,  et  pro  tempore  quandocumque  spectabit,  inviolabiter,  et  in- 
concusse  observari :  Sicque,  et  non  aliter  in  pnemissis  per  quoscumque  Judices 
Ordinarios,  et  Delegates,  etiam  Causarum  Palatii  Apostolici  Auditores,  ac  Sanctaj 
Romae  Ecclesiae  prsefatae  Cardinales,  etiam  de  latere  Legatos,  et  ejusdem  Sedis 
Nuntios,  aliosve  quoslibet  quacumque  prteeminentia,  et  potestate  fungentes,  et 
functuros,  sublata  eis,  et  eorum  cuilibet  quavis  aliter  judicandi,  et  interpretandi 
facultate,  et  auctoritate,  judicari,  et  definiri  debere,  ac  irritum,  et  inane,  si  secus 
super  his  a  quoquam  quavis  auctoritate  scienter,  vel  ignoranter  contigerit  attentari. 

§  51.  Non  obstantibus  pra^missis.  ac  quatenus  opus  sit,  nostra,  et  Cancellaria? 
ApostolicaB  regula  de  jure  qusesito  non  tollendo,  aliisque  Constitutionibus,  et  Ordina- 
tionibus  Apostolicis.  necnon  quibusvis,  etiam  juramento,  confirmatione  Apostolica. 
vel  quavis  firmitate  alia  roboratis,  statutis,  et  consuetudinibus,  ac  usibus,  et  stylis. 
etiam  immemorabilibus,  privileges  quoque,  indultis.  et  Literis  Apostolicis,  praafatis 
aliisque  quibuslibet  Judicibus,  Curiis,  Tribunalibus,  et  Personis,  etiam  quantumvis 
sublimibus,  et  specialissima  mentione  dignis.  sub  quibuscumque  tenoribus,  et  formis. 
ac  cum  quibusvis  etiam  degoratoriarum  derogutoriis.  aliisque  efficacioribus,  efficacissi- 
mis,  et  insolitis  clausulis,  initantibusque  Decretis.  etiam  motu,  scientia,  et  potestatis 


276  Appendix. 


plenitudine  paribus,  ac  consistorialiter,  et  alias  qnomodolibet  in  contrarium  praemis- 
sorum  concessis,  editis,  factis,  ac  pluriea  iteratis.  et  quantiscumque  vicibns  approbatis, 
confirmatis  et  innovatis :  Quibus  omnibus,  et  singulis.  etiain  si  pro  illoruin  sufficient! 
derogatione  de  illis.  eorumque  totis  tenoribus  speoialis.  specitica,  expressa,  et  indi- 
vidua,  ac  de  verbo  ad  verbum,  non  autem  per  clausulas  generales  idem  importantes, 
mentio  seu  quajvis  alia  expressio  habenda.  aut  aliqua  alia  exquisita  forma  ad  hoc  ser- 
vanda  foret,  tenores  hujusmodi,  ac  si  de  verbo  ad  verbum  niliil  penitus  omisso,  et 
forma  in  illis  tradita  observata  exprimftrentilr,  et  insererentur.  pnesentibus  pro  plene, 
et  sufficietur  expressis,  et  iusertis  habentes.  illis  alias  in  suo  robore  permansuris,  ad 
pnumissorum  effectum  hac  vice  dumtaxat  specialiter,  et  expresse  derogatum  esse 
volumus,  cteterisque  contrariis  quibuscumque. 

§  52.  Ut  autem  eredem  pnesentes  literse  ad  omnium  notitiam  facilius  deveniant, 
volumus  illas,  seu  earum  exempla  ad  valvas  Ecclesite  Lateranensis,  et  Basilica1 
Principis  Apostolorum,  necnon  Cancellariie  Apostolicte,  Curia?que  Generalis  in  Monte 
Citatorio,  ac  in  Acie  Campi  Flone  de  Urbe,  ut  moris  est,  affigi.  et  publicari,  sicque 
publicatas,  et  affixas  omnes,  et  singulos,  quos  illse  concernunt,  perinde  arctare,  ac 
afficere,  ac  si  unicuique  eorum  nominating  et  personaliter  intimate  fuissent:  ipsarum 
autem  literamm  transumptis,  sen  exemplis  etiam  impressis,  manu  tamen  alicuius 
Notarii  public!  subscriptis,  et  sigillo  persona?  in  Ecclesiastica  dignitate  constitutir 
munitis,  eamdem  prorsus  fidem,  tarn  in  judicio,  quam  extra  illud  ubique  locorum 
liaberi,  qua?  haberetur  ipsis  prresentibus,  si  forent  exhibita-,  vel  ostensae. 

§  53.  Nulli  ergo  omnino  hominum  liceat  hanc  paginam  Xostri  decreti,  constitu- 
tionis,  declarationis,  annullationis,  admonitionis,  et  voluntatis  infringere,  vel  ei  ausu 
temerario  contraire;  si  quis  autem  hoc  atientare  prajsumpserit,  indignationem  Omuip- 
otentis  Dei,  ac  Beatorum  Petri,  et  Pauli  Apostolorum  ejus  se  noverit  incursurum. 
Datum  Roma3  apud  Sanctam  Mariam  Majorem  anno  Incarnationis  Dominica?  milesimo 
septingentesimo  quadragesimo  secundo.  tertio  Kal.  Aprilis.  Pontificatus  Nostri  Anno 
II.  P.  Caid.  Pro-Datarius.  D.  Card.  Passioneus.  Visa  de  Curia.  N.  Antonellus.  J. 
B.  Eugenius.  Registrata  in  Secretaria  Brevium.  Publicat.  die  18.  Aprilis  ejusdem 
Anni. 


III. 

Decreta  S.  Congregationis  Episcoporum,  de  mandate  dementis  Papce  VIII.  lata  Anno 
1600.       Circa  Api^ellatinnes  et  Inhibitiones. 

Ad  tollendas  ambiguitates  et  controversias  jurisdictionales,  qua?  inter  appellationem 
et  prioris  instantire  Judices  non  sine  Partium  dispendio  cursusque  justitiaj  impedi- 
inento  et  stepe  cum  scandalo  oriuntur.  Sacra  fongregatio  Causis  Episcoporum  pnv- 
posita,  facta  prius  relatione  SS.  D  N.  Clementi  Papaj  VIII.,  ac  de  Sanctitatis  Sua) 
mandato.  vivie  vocis  oraculo  clesuper  habito,  in  hunc,  qui  scquitur  niodum  ab  omni- 
bus, ad  qtios  spectat,  in  posterum  fieri  ac  servari  debere  inaudavit  ct  mandat. 


Appendix.  277 

I.  Metropolitan!,  Archiepiscopi,  Primates  aut  Patriarchae  in  Suffraganeos  eorumve 
Subditos  non  judicent  nisi  in  casibus  a  jure  expressis. 

II.  Item  nee  alii  Superiores,  etiam  Xuntii  vel  Legati  de  latere,  specificam  faculta- 
tem  maiorem  non  habentes,  causas  in  Curiia   Ordinariorum,  vel  aliorum  inferiorum. 
Judicium  pendentes  ad  se  advocent,  nisi  per  viam  legitimaa  appellationis  ad  ipsorum 
Tribunalia  deferantur ;     tuncque   Appellantes  ab  inferiorum  jurisdictionibus  quoad 
alias  Causas  eximere  non  possint. 

III.  Appellationes  nunquam  recipiantur,  nisi  per  publica  documenta,  qua?  realitcr 
exhibeantur,  prius  constiterit,  appellationem  a  senteutia  definitiva  vel  habente  vim 
defmitivte  aut  a  gravamine,  quod  per  definitivam  sententiam  reparari  non  possit,  in 
casibus  a  jure  non  prohibits  per  legitimam  personam  et  intra  debits  tempora  fuisse 
interpositam  ac  prosequutam. 

IV.  Xec,  dum  causa  coram  inferioribus  Judicibus  pendet.  ante  definitivam  senten- 
tiam vel  vim  definitive  habentem  de  gravamine  illato  Superiores  cognoscere  valeant, 
licet  citra  pnejudicium  cursus  Causarum  se  id  facere  contestentur ;    nee   ad  hunc 
effectum   liceat  eis  inhibere  aut  simpliciter  mandare,  ut  ipsis  copia  processus  trans- 
mittutur,  etiam  expensis  Appellantis. 

V.  Inhibitiones  post  appellationem,  sicut  praemittitur,  receptam   non  concedantur, 
nisi  cum  inscriptione  tenoris  sententue  aut  decreti  definitivi,  aut  vim  definitive  haben- 
tis  vel  damnum  per  dennitivam  irreparabile  continentis ;  alias  inhibitiones  et  proces- 
sus e:  inde  sequuta  qiuecunque,  sint  ipso  jure  nulla,  eisque  impune  non  parere  liceat. 

VI.  Si  Appellans  asserat,  sententiae  aut  appellationis  exemplum  culpa  Judicis  a 
quo  vel  Actuarii  habere  non  posse,  non  ideo  recipienda  erit  appellatio  aut  aliqua  inhi- 
bitio  concedenda;    sed  eis  tantum,  ad  quos   pertinet,  injungi  poterit,  ut.  soluta  con- 
digna  mercede   Actorum,  exemplum  authenticum  Appellant!  intra  brevem  aliquem 
competentem  terminum  tradatur.     Caveat  tamen  Judex  a  quo,  ne,  si  vere  appellatum 
fuerit  in  casu  appellabili,  interim  aliquid  in  pnejudiciamAppellantis  attentet ;    et  si 
per  actum  publicura  aut  per  testium  depositionem  constiterit,  Acta  denegari  Appel- 
lanti,  tune  mandato  traddendi  Acta  possit  Judex  appellationis  adjicere,  ne  interim 
aliquid  novi  contra  Appellantem  attentetur. 

VII.  Ab  exequutione  Decretorum  Sac.  Concilii  Tridentini  aut  Visitationis  Apos- 
tolicaj  appellationes  a  Metropolitanis  non  recipiantur,  nee  si  Epjscopi  virtute  ejusdem 
Sacri  Concilii  procedunt,  uti  Sedis  Apostolicse  Delegati  in  Cauis,  qua3  sub  eorum 
jurisdictione  Ordinaria  non  comprehenduntur;    salva  tamen  in  hoc  casu   Legatorum 
et  Xuntiorum  Apostolicorum  auctoritate. 

VIII.  In   Causis   vero  Visitationis   Ordinariorum  aut  corrections  morum  quoad 
effectum  devolutivum  tantum  admittantur.  nisi  de  gravamine  per  definitivam  irre- 
parabili  agatur;  vel  cum  Visitator,  citata  Parto.  et  adhibita  Causre  cognitioue.  judicia- 
liter  procedit:  tune  enim  appellation!  locus  erit.  etiam  quoad  effectum  suspensionem. 

IX.  Cum  a  gravamine,  quod  per  definitivam  reparari  nequit.  ut  indebitae  carcera- 
tionis  vel   tortune  aut  excoiumunicsitionis.  etiam  comminate.    appellatur:    nonnisi 
visis  Actis,  ex  quibus  evidenter  appareat  de  gravamine  appellatio  admittatur,  aut 
inhibitio  vel  provisio  aliqua  concedatur. 


278  Appendix. 


X.  Causa  appellationis  pendente,  appellans  in  eodem,  quo  reperitur  carcere.  per- 
raanebit,  quoad  Judex,  ad  quera  appellatura  est,  visis  actis,  et  Causa  cognita,  aliter 
decreverit:  et  tune  si  a  Judicis  ad  quera  decreto,  vim  definitive  habente.  fuerit 
appellation,  nihil  mandare  aut  pro  sui  decreti  exequutione  attentare  potent,  donee 
per  Judicem  Superiorem  aliud  fuerit  ordinatum. 

XL  Acta  originalia  processus  prim;e  instantite  ad  Judicem  appelJationis  Notarius 
mittere  non  cogatur,  nisi  probabilis  aliqua  falsitatis  causa  et  suspicio  incid.-r 
judicialiter  objiciatur ;  et  tune,  terminata  causa,  remittenda  sunt  ad  Ordinarium,  ut  in 
suo  Archivo  conserventur. 

XII.  Censura  Ecclesiastics  in  Appellantem  prolata  relaxari  aut  nulla  declararl  per 
Judicem  Appellationis  non  possit,  nisi  auditis  Partibus,  et  Causa  cognita ;  tuncque, 
si  constiterit,  earn  justam  esse,  ad  Judicem,  qui  excommunicavit.  Appellans  remitten- 
dus  est,  ut  ab  ipso  juxta  Sacros  Canoues  beneficium  absolutionis,  si  humilitcr  petierit 
debitamque  emendationem  pnestiterit,  obtineat:  si  vero  injustam  esse  clare  apparet, 
superior  absolutionem  impendat ;  si  dubitetur,  honestius  est,  ut  ad  excommunicatorem 
intra  brevem  aliquem  competentem  terminum  eidem  praefigendum  ubsolveudus  remit- 
tatur,  licet  etiam  superior  hoc  casu  idipsum  per  se  pnestare  jure  possit. 

XIII.  Absolutio  ad  cautelam,  nonnisi  parte  citata,  et  visis  Actis.  cum  dubitatur  de 
nullitate  excommunicationis  ab  homiue  prolatae,  vel  a  jure,  si  occurrat  dubium  facti 
vel  probabile   dubium  juris,    concedenda   erit,  tuncque  ad  tempus  breve  cum  reinci- 
dentia  et  prsestita  per  excommunicatum  cautione  de  stando  juri  et  parendo  mandatis 
Ecclesise  tantum :  et  si  juxta  formam  a  jure  pnescriptam  apparebit,  [ali]  quern  ob 
manifestam  offensam  excommunicatum  fuisse,  debitam  etiam  satisfactiouem  pnestare. 
et  si  ob  contumaciam  manifestam,  expensis  pariter  satisfacere  et  cavere  de  judicio, 
sisti  coram  excommunicatore  is  tenebitur,  priusquam  ad  cautelam  absolvatur. 

XIT.  A  sententia  etiam  definitiva,  contra  vemm  contumacem  prolata,  appellatio 
non  recipiatur,  nee  inhibitio  aut  alia  qufevis  provisio.  quamdiu  Appellans  in  hujua- 
modi  vera  contumacia  perstiterit,  concedatur.  Romas  in  Sacra  Congregatione  die 
16  Octobris  1600. 


IV. 

Decrda  Urbani  Papce  VIII.  Anni  1626.     Circa  eamdem  materiam   appellationum  et 

inhibitionum. 

Declaratio  Sacra?  Congregationis  Cardinalium  et  Prselatorum,  a  sanct.  mem.  Urbano 
XIII.  alias  deputatae  et  a  Sanctissimo  D.  N.  Innocentio  X.  renovatse,  super  appella- 
tionibus  et  inhibitionibus  Tribunalis  Auditoris  Camerse  et  aliorum  Tribunalium  Curiae 
Romanse  in  prsejudicium  Nuntiorum,  Episcoporum  ac  Superiorum  Regularium,  teuoris 
infrascripti.  videlicet:  Dubitatum  fuit: 

Primo,  an  in  Tribunal!  Auditoris  Cameife  Romanse  possint  concedi  monitiones  seu 
Monitoria  cum  absolutione,  etiam  cum  reincidentia  vel  ad  cautelam,  excommunicatis 


Appendix.  2  79 


per  Episcopos  et  alibs  Ordinaries  ex  causa  violatse  jurisdictionis.  immunitatis  vcl 
libertatis  Ecclesiastics  Appellantibua  vel  alias  recurrentibus  ad  stipradicta  Tribunalia. 

Secundo,  an  in  Causis,  qua?  agitantur  in  supradictis  Tribunalibus  Curiae  Romanas, 
possit  recursus  liaberi  ad  Sacrum  Congrcgationum  super  Immunitate  et  controversiis 
jurisdictionalibus  pro  resolutione  vel  declaratione,  an  sit  vel  non  sit  commissa  vio- 
latio  jurisdictionis,  immunitatis  vel  libertatis  Ecclesiasticae,  et  an  sit  locus  reintegra- 
tioni  hujusmodi  violationis,  et  interim  debeant  dicta  Tribunalia  supersedere  usque  ad 
resolutionem  seu  declarationem  ejusdem  Sac.  Congregationis  illamque  sequeet  exequi. 

Die  4.  et  11.  August!  1626.,  Dubiis  supradictis  cum  interventu  omnium  Illustrissi- 
morum  DD.  Cardinalium  et  Reverendissimorum  Praelatorum  deputatorum  mature 
discussis,  ac  rationibus  hinc  inde  deductis  diligenter  ponderatis,  unanimi  consensu 
censuit : 

Quoad  Primum,  Tribunal  Auditoris  Camera?  nccnon  alia  Tribunalia  supradicta  noa 
posse  hujusmodi  absolutioncs  concedcre,  etiam  cum  reincidentia  vel  ad  cautelam. 

Quo  vero  ad  Secundum,  ut  supra,  recurri  posse,  et  interim  supradicta  Tribunalia 
txspectare  debere  resolutionem  sen  declarationem  et  illam  omnino  sequi  et  exequi. 

Quibus  quidem  decretis  eidem  Sanctissimo  die  5  Septembris  ejusdem  anni  1 626, 
piene  relatis  una  cum  rationibus  et  auctoritatibus,  Sua  Sanctitas  ea  approbavit  et 
confirmavit  illaque  omnia  exequi  jussit ;  et  ad  hunc  effectum  notificata  f  uerint.  Et 
subinde,  cum  de  supradictis  dubiis  iterum  actum  esset  in  Congregatione  habita  die 
27.  Aprilis  1650.,  nemine  dissentiente,  resolutum  ftiit  Auditorum  Camera? debere  de- 
creta  ut  supra  edita  omnino  observare  ac  pnecipere,  ut  a  suis  Ministris  et  Officialibus 
exacte  observentur. 


Additiones  sen  declaratiunes  Sanciissimi  Domini  Nostri  Benedicts  Papas  XIII.  super 
quibusdam  e.c  allot  is  Decretis.  quas  Sanctitas  Sua  de  consilio  et  Voto  vongreyationis 
particular i.i,  ab  ipsamet  deputake  super  refbrmatione  Tribunalium  et  Congregationum, 
sen-andas  in  posienua  dlstricte  mandat  et  prcecipit. 

Ad  H.  Eecretum  dementis  Till. 

1.  Recipi  possint,  et  dumtaxat  in  Tribunal!  Auditoris  Camera,  constitute  Reorum 
in  causis  prima?  instantiae,  in  quibus  de  poenis  corporalibus  agitur,  habita  ratione  ad 
titulum  inquisitionis.  non  vero  in  causis  censurarum  vel  simjlicis  mulctje  vel  declara- 
tionis  Irregularitatis  give  in  aiii.s  causis,  in  quibus  dicta  poena  corporalis  non  intrat 

2.  Regularium  constituta  nunquam  rccipiantur. 

3.  Hujusmodi  constituta  fieri  tantum  possint  coram  A.  C.  in  criminalibus,  non  vero 
coram  alio  Judice  appellationis,  neque  in  Urbe  neque  extra  earn,  nee  etiam  in  Sacra 
Congregatione  negotiis  Episcoporum  et  Regularium  prseposita. 

4.  Constitutus   Reus  coram  A.  C.   debeat  statim  in  Carceribus  formalibus  Urbia 


280  Appendix. 

detineri,  deinde  primum  expediantur  in  ejus  Tribunal!  literae  inhibitorfales  et  com- 
ptilsoriales  (absque  eo,  quod  conbtitutus  juret,  se  suspectum  habere  Ordinarium)  pro 
transmissions  Actorem  coram  dicto  Ordinario ;  nee  possit  Reus  habilitari  per  Urbem 
et  extra  Carceres  formales,  nisi  visis  et  discussis  Actis,  et  quatenus  de  jure  sit  locus 
dictae  habilitationi,  audita  parte  offensa  vel  ejus  Procuratore,  si  in  Curia  sit  prsesens 
necnon  Fisco  R.  C.  A.,  et  quatenus  causa  sit  cum  Procuratore  Fiscali  Curia  Ecclesi- 
asticas,  audito  Promotore  Fiscali  Curiarum  Episcopalium  in  Urbe,  atque  insuper  facto 
desuper  verbo  in  plena  Congregatione  Criminal!  A.  C. 

5.  Si  Acta  vel  non  incoepta  coram  Ordinario  vel  sufficienter  impinguata  non  fuerint, 
non  communicenter  Reo,  sed  eo  rctento  in  Carceribus  formalibus,  committatur 
Ordinario  processus  informativi  compilatio  vel  respective  impinguatio,  facienda 
expensis  Partis  querelantis  vel  Fisci  Ecclesiastici,  si  ea  non  adsit. 

G.  Actis  sufiicientur  impinguatis,  servatis  servandis,  procedatur  ad  expcditionem 
Causre,  prout  de  Jure,  audita  semper  Parte  offensa  vel  ejus  Procuratore,  necnon 
Fisco  R.  C.  A.  et  Curiarum  Episcopalium.  ut  supra  in  quolibet  actu ;  districte  in- 
ijungente  Sanctitate  Sua,  ut  coram  semetipso  A.  C.  tractari  et  expedin  faciat  hujus- 
imodi  causas  juxta  meritum  justitiae,  ne  Rei  iuquisiti  forum  Ordinarii  declinantes  in 
prima  instantia,  in  Urbe  quaerant  reatuum  prsesidium 


Ad  V.  et  VI.  Decretum. 

Cum  experientia  docuerit,  non  raro  Appellantibus  ad  Tribunal  A.  C.  Ordinarios 
denegare  copias  publicas  Senteutiarum  vel  Decretorum  et  aliquando  contitmare  actus 
praejudiciales  contra  Appellautes  in  odium  etiam  appcllationis  interpositaj ;  quaprop- 
ter,  si  forma  decreti  VI.  indistincte  servanda  esset,  tempore,  quo  requisitorue  Judices 
appellationis  cxpediuntur  et  ad  maims  Judicis,  a  quo  appellatum  fuit,  perveniant, 
praesertim  si  magna  sit  loconim  distantia,  prasjudicia  contra  appellantes  cumularentur: 
ideo  Sauctissimus  Dominus  Noster  declarat  et  denuo  statuit,  et  mandat,  in  aliquibus 
casibus  et  circumstantiis,  in  quibus  arbitrio  et  prudentia  A.  C.  et  Locumtenentium,  ad 
quos  appellatio  fuit  interposita,  necesse  est  opportune  et  solicite  provideri,  ut  praevia 
in  Actis  productione  copLe  simplicis  sententise  seu  decreti  possint  expediri  inhibi- 
tiones  vigore  appellationis  cum  insertione  ejusdem  simplicis  copise :  ita  tamen,  ut  in 
corpore  ejusdem  iuhibitionis  exprimatur,  quod,  si  sententia  sive  decretum  insertum 
non  fuerit  latum  ante  expeditionem  literarum  inhibitorialium,  vel  copia  non  fuerit 
conformis  originali,  sententire  sive  decreto  promulgato,  tune  inhibitio  millatenus  vim 
habeat  et  afficiat,  sicuti  pnesentis  decreti  tonore  nulla  et  irrita  dcclaratur,  ut  impune 
sperni  possit  ac  valeat. 

Caveant  autem  Xotarii,  ne  inhibitiones  vigore  appellationis  concedant,  nisi  cum 
copia  publica  ad  formam  dictorum  Decretorum  sub  Clemente  Till,  et  in  casibus 
particularibus  cum  copia  simplici,  modo  tamen  supra  expresso,  facto  de  his  verbo 
cum  Judice,  sub  prena  suspensionis  ab  officio  aliisque  corporalibus  arbitrio  Sanctitatis 


Appendix.  281 

Ad   ZT.    Decretum. 

Sanciitas  Sua  declarat  et  mandat,  in  caus:i  pnetensse  indebitse  carcerationis,  quate- 
nus  sit  seqmita  cum  mandate  Judicis  verbali,  ut  possint  expediri  inhibitiones  vigore 
appellationis,  constito  tantum  de  carceratione  per  publicum  documentum  Notarii  rel 
Carccrarii  s-ive  etiam  cum  depositiono  duorum  Testium.  In  causis  vero  comminatse 
injusUe  carcerationis,  tortures  vel  excommunicationis,  Sanctitas  Sua  declarat  et  man- 
dat, ut  non  expediantur  inhibitiones  generates  et  indefinite,  sed  tantum  compulsori- 
ales  pro  transmissione  copia?  Actorum  ad  effectum  cognoscendi,  an  sit  deferendum 
necne  appellationi,  adjnncta  in  dictis  literis  compulsorialibus  inhibitione,  ut  interim 
Judex  a  quo  ad  ulteriora  non  procedat:  et  quatenus,  visis  Actis,  resultet  evidens 
gravamen,  tune  admittatur  appellatio  cum  inhibitione,  et  Causa  cognoscatur  coram 
Judice  ad  quern  ;  si  vero  de  hujusmodi  gravamine  non  constet,  remittatur  Causa  ad 
Judicem  a  quo,  cognoscenda  in  prima  instantia. 

Ad  I.  et  II.  Decretum  Urbani   VIII. 

Statuit  praeterea  Sanctitas  Sua,  quod  in  Causis  violates  Jurisdictionis,  Immunitatis 
et  libertatis  Ecclesiastical  A.  C.  vel  alia  quaslibet  Tribunalia  Urbis  et  extra  earn  ne- 
queant  appellatioiies  admitere,  inhibitiones  relaxare  aut  absolutionem  a  censuris, 
etiam  cum  reincidentia  vel  ad  cautelam,  concedere,  sed  recursus  et  appellationes  fie- 
ri tantum  possint  ad  Sac.  Congregationem  Immunitatis.  Quortsi  in  aliqna  Causa  du 
bitari  contingat,  an  agatur  de  causu  violata?  Immunitatis,  seu  Jurisdictionis  aut  liber- 
tatis Ecclesiastic*,  supcrsederi  debeat  in  Causa  coram  quolibet  Judice,  donee  fuerit 
resolutum  in  eadem  Sacra  Congregatione,  an  fuerit  violata  Immunitas,  Jurisdictio 
vel  libertas  Ecclesiastica,  et  an  sit  locus  reintegrati  ni  juxta  declarationem  allatam 
in  supra  recensitis  Decretis  Urbani  VIII. 

Insuper  cum  A.  C.  ex  facultatibus  sibi  concessis  sit  exequutor  omnium  literarum 
Apostolicarum,  vel  solus,  cum  alii  non  suut  doputati,  executores,  vel  quando  sunt 
depi.tati  cumulative  cum  ipsi?,  atque  etiam  sit  exequutor  omnium  sententiarum  tarn 
in  Curia  quam  extra  per  quosvis  Judices  prolatarum,  ac  tandem  concedere  soleat 
monitoria  super  cxequutione  rcsolutionum  Sacramm  Congregation  urn :  Sanctitas  Sua 
decrevit.  quod  monitoria  in  Tribunali  A.  C.  super  exequutione  literarum  Apostolica- 
rum  non  expediantur,  nisi  exhibito  legitimo  documento  earumdem  literarum  Apostoli- 
carum.  Quoad  vero  sententias  monitoria  non  concedantur,  nisi  pnevio  documento 
publico  Actuaiii  Causa;  cum  legalitate  Ordinarii,  et  quoad  decreta  Sac.  Congrega- 
tionum  exhibeantur  copije  subscriptse  a  Secretario  cum  Sigillo  Cardinalis  Pnefecti: 
r.ec  possint  hujusmodi  monitoria  super  exequutione  sententianim  vel  decretonun 
aliter  expediri,  etiam  si  sentential  et  decreta  publice  typis  evulgata  fuerint  vel  in  lib- 
ris  impressa  referantur ;  et  in  dictis  monitoriis  apponatur  clausula:  dummodo  non 
vigeat  eis  ad  hue  pendans  coram  Judice  competent!  super  sententia  vel  Constitu- 
tionibus  Apostolicis  aut  decretis  Sacrarum  Congregationum,  de  quibus  agitur. 

Quia  vero  inoluit  abusus,  quod  citationibus  t}-pis  impressis  in  Urbe  cum  subscrip- 
tione  alicujus  ex  Notariia  A.  C.  quse  dicuntur  Camerales,  quaeque  introductaj  sunt  ad 


282  Appendix. 

hoc,  ut  Partes  absentes  a  Curia  citentur,  ut  compareant  coram  A.  C.  sen  cjus  Locum- 
tenente  in  judiciis  exquutivis  seu  obligationibus  '  Cameralib'us,  in  cjus  Tribunal}  pro- 
moveudis,  utantur  Curiales  et  Partes  in  aliquibus  Causis  appcllationum  ab  Ordinariis, 
et  etiam  audeant  iis  uti  in  Causis  coram  Sacris  Congregationibus,  adeo  ut  per  intima- 
tionem  in  Partibus  hujusmodi  citationum  cum  appositione  inhibitionis  deterrcantur 
Judices  a  quibus  procedere,  et  Partes  Judicia  continuare  coram  dictis  primis  Judici- 
bus  et  Ordinariis  desinant,  ob  reverentiam  Tribunalis  A.  C.  et  fortius  Sacrarurn  Con- 
gregationum  et  ob  timorem  incursus  attentatonim  :  ideo  Sanctitas  Sua  mandavit, 
quod  per  intimationem  dictarum  citationum,  etsi  in  iis  apporalur  clausula  inhibitoria, 
lion  intelligatur  ulla  inhibitio  facta  aut  interposita,  ita  ut  sperni  impune  valeat  ac  de- 
beat  in  quibuscumque  Causis  in  Sacris  Congregationibus  et  coram  A.  C.,  sed  quoad 
isiius  Curiam  dicte  citationes  suam  vim,  prout  de  jure,  habeant,  quatenus  Causse  ex- 
equutivae  seu  obligationes  Camerales  fueriut,  quse  in  prima  instantia  coram  eo  agitari 
possint,  ita  quod  dictse  citationes  in  aliis  C«usis  nullo  modo  afficiant  ueque  ad  com- 
parendum  arctent. 

Itidem  Sanctissimus  Dominus  Noster  in  causis  exemptorum  et  mercedum  et  mise- 
rabilium  pcrsonarum  servari  omnino  et  districte  mandat  dispositionem  Sac.  Concilii 
Tridentini  cap.  14.  sess.  7.  de  reform.,  privilegiis.  exemptionibus  et  consuetudinibus 
quibuscumque,  etiam  post  Tridentinum  a  Sede  Apostolica  concessis  et  respective  in- 
troductis,  non  obstantibus ;  quse  Conciliaris  dispositio  est  sequens  •'  In  Civilibus  Cau- 
sis mercedum  et  miserabilium  personaruui  Clerici  sseculares  aut  Regulares  extra 
Monasterium  degentes,  quomodolibet  exempti.  etiamsi  gertum  Judicem  a  Sedc  Apos- 
tolica deputatum  in  partibus  habeant,  in  aliis  vero,  si  ipsum  Judicem  non  habuerint, 
coram  locorum  Ordinariis,  tamquam  in  hoc  ab  ipsa  Sede  delegatis,  conveniri  et,  prout 
de  jure,  ad  solvendum  debitum  cogi  et  compelli  possint.  privilegiis,  exemptionibus, 
Conservatorum  deputationibus  et  eorum  iuhibitionibus  advcrsus  praemissa  nequa- 
quam  valituris." 

Ad    XIL  et  XIII.   Decretum    dementis   VIII. 

Quoad  absolutionem  ultimatam  a  censuris,  servetur  dispositio  supradicti  decreti 
XII.  dementis  VIII.,  juxta  etiam  canonicam  sanctionem:  quod  in  causu  [quo]  con- 
stet  de  justitia  censurarum,  debeat  remitti  absolutio  danda  ad  Judicem  a  quo;  si  ve- 
ro constet  clare  de  injustitia,  Judex  ad  quern  absolutiouem  impendat ;  si  vero  adsit 
dubietas,  an  f uerit  justa  vel  injusta,  honestius  esset,  ut  ad  excommunicatorem  infra 
aliquem  competentem  terminum  prafigendum  absolvendus  remittatur,  licet  etiam 
Judex  ad  quern  hoc  casu  idipsum  per  se  pnestare  jure  possit.  Terum  quoad  abso- 
lutiones  reincidentia,  quae  Partibus  concedi  solent  a  Judicibus,  ad  quos  appellatur, 
ad  affectum  audiendi,  cum  inoluerit  usus  tam  in  Tribunal!  A.  C.  quam  forsan  etiam  in 
Metropolitans  aliisque  Tribunalibus  appellationum,  quod  committantur  absolutiones 
cuicuinque  Confessario,  ita  ut  Rei  absque  ulla  reverentia  proprii  ordinarii  pro  abso- 

A 

lutis  se  publice  habeant:  Sanctitas  Sua  statuit,  ut  in  futunim  hujusmodi  absolutio- 
nes  cum  reincidentia,  tam  in  Tribunali  A.  C.  quam  in  Curiis  Metropolitanis  alionim- 
que  Judicum  appellationum.  committantur  ipsis  Ordinariis  cxcommunicantibus  cum 


Appendix.  283 

clausula,  ut  infra  Ires  dies  absolvant  censuratos  juxta  commissioner!! ;  quibus  elap- 
sis,  si  requisites  Ordinarius  absolvere  recusaverit  vel  neglexerit,  absolvautur  a  Con- 
fessario  juxta  commissiouis  formam,  qute  in  priesenti  servatur  in  dictis  conmiissioni- 
bus  absolutionum.  Quoad  vero  censuratos  in  Urbe  commorantes,  coiiimiui  debeat 
absolutio  Cardinal!  Urbis  Vicario  seu  ejus  Vicesgerenti,  ac  prsefata  servari  etiam 
mandavit  in  absolutionibus,  quae  conceduntur  per  Congregatioues,  prout  jam  religio- 
se in  ipsis  servatum  fuit.  Declaravitque  rursus  Sanctitas  Sua,  quod  hujusmodi  com- 
missioiies  de  absolvendo  praesentari  debeant  Cancellario  Ordinariorum,  a  qua  pra'scn- 
tatione  currcre  debeant  tres  dies,  post  quorum  lapsum,  et  non  data  absolutione,  pos- 
sint  ab  aliis  absolvi,  ut  supra,  in  commissionc.  „ 

Quoad  insuper  censuratos  mandat  Sanctitas  Sua,  quod,  reportata  absolutione  a 
censuris  cum  reincidentia,  cedulones,  quatenus  affixi  fuerint,  amoveri  non  debeant. 
sed  tantummodo  tegantur  et  tecti  remaneant,  durante  termino  obtentae  absolutions. 

Cum  in  hujusmodi  decretis  agatur  de  appellationibus  in  Causis  judicialibus,  Sano- 
titas  Sua  enixe  hortatur  omnes  Ordinarios,  ut,  cum  ipsi  Fatrum  nomen  erga  subditos 
promereantur  potius  quam  Judicum,  caveant,  ne  lites  excitent,  sed  excitatas  compo- 
nere  curent,  prsesertim  inter  pauperes  et  miserabiles  personas,  quas  protegere  prasci- 
puum  munus  eorum  est.  Ideoque  Sanctitas  Sua  mandat,  quod  pauperibus  condo- 
nentur  sportulae  et  emolumenta  quaecumque.  etiam  Cancellarii,  et  alias  quwcumque 
expeditiones  gratis  dentur,  etiam  copiae  Actorum  transmittendorum  ad  Judices  ad 
quos :  et  quoad  qualitatem  paupertatis,  haec  summarie  cognoscatur  per  testes,  gratis 
etiam  examinandos,  et  de  ea  stetur  arbitrio  ipsius  Ordiuarii  et  Judicis,  serio  oneran- 
do  conscientiam  Ordinariorum  et  Judicum  in  re  torn  gravi,  de  qua  specialiter  Deo 
ipsi  rationem  erunt  reddituri,  ultra  condignas  pcenas  contra  inobservantes,  relaxan- 
das  arbitrio  Sanctitatis  sua3 ;  quodque  decretum  servari  debeat  in  quacumque  Curia 
Ordinariorum,  Metropolitanorum  et  quorumcumque  Judicum  appcllationum,  etiam 
Nuntiorum  Apostolicorum,  et  in  quacumque  Causa  tarn  civili  quam  criminal!. 

Similiter,  ut  satis  providcatur  pauperibus  legitantibus,  prout  summopere  Ecclesi- 
asticos  Judices  decet,  Sanctitas  Sua  mandat,  in  quibuscumque  supradictis  Curiis  de- 
putari  Procuratorem  Pauperum  et  Advocatum,  qui  iis  assistant  iu  quibuscumquo 
Causis  Civilibus  et  Criminalibus,  viros  pietate  et  doctrina  prsestantes,  cum  assigna: 
tione  alicujus  mercedis,  si  posibile  foret,  et  de  iis  electis  habeatur  ratio  in  provisio- 
uibus  beneficiorum  et  in  attestationibus  faciendis  Datarire  Apostolica>,  ut  per  Roma- 
nes Pontifices  in  provisionibus  haberi  valeat  respectus  ad  servitia  presuta  in  tarn 
pio  opere. 

Itidem  Sanctitas  Sua  quoad  Tribunal  A.  C.  mandavit,  inviolabilitcr  servari  refor- 
mationem  Pauli  Papas  V.  in  Constitutione  incipiente  :  Universi  agri  §  20.,  videlicet, 
ut  pauperibus  dentur  gratis  extractus,  registra,  instrumenta,  etiam  publica,  copia3  et 
ali:e  qiuecumque  expeditiones  et  scriptura?,  tarn  Civiles  quam  Criminales,  et  osten- 
dantur  etiam  orisrinalia  Paupenim  Advocate  et  Procurator!  similiter  gratis  et  absque 
ulla  impensa:  et  si  quando  contigerit,  probandum  esse  paupertatem,  testes  similiter 
gatis  et  summarie  examinentur,  et  de  paupertate  stetur  arbitrio  Judicis;  addito  pec 
Sanctitatem  Suam,  quod  in  casu  gravaminis  Judicis,  quoad  paupertatem  non  admis- 


284  Appendix. 


sam,  reeurri  valeat  ad  Auditorem  pro  temporo  Summi  Pontificis,  qui  debita  cluiritate 
servari  faciat,  quod  sequum  erifc ;  praedictaque  omnia  mandat  Sanctissimus  servari  in 
quibuscumque  Curiis  Urbis  inviolabiliter. 

Quia  in  Causis  infra  sammam  scutorutn  quinquaginta  monetae  Romans,  in  quibus 
a  Judicibus  de  partibus  appellatur  ad  Urbcm,  juxta  stylum  et  Apostolicas  Ordina- 
tiones  non  debet  in  Curia  procedi  in  gradu  appellationis,  sed  per  viam  recursus 
deputantur  Judices  in  partibus ;  cum  ex  pcnuria  tcmporum  videatur  gravans 
appellantibus  in  Causis  etiam  ultra  dictam  summam  scutorura  50  Causas  prosequi 
appellationum  in  Curia :  idco  Sanctitas  Sua  extendit  dictam  summam  scutorum 
quinquaginta  monetae  usque  ad  centum  ejusdem  monetae  Romanse,  ita  ut,  si  summa 
causae  non  sit  ultra  quantitatem  scutorum  centum,  ut  supra,  Causa  non  dicatur  curia- 
lis  et  appellabilis  per  viam  appellationis,  sed  tantum  deputandos  esse  Judices  in 
partibus,  qui  procedant  per  viam  recursus,  quorum  deputatio  fieri  debeat  per 
Tribunalia  Urbis,  ad  qua;  pertinet. 

Mandat  rursus  Sanctitas  Sua,  ut  in  Causis  mercedum  miserabilium  personarum 
recursus  et  appellationes  respective  non  admittantur  a  quocumque  Judico  appella- 
tionum, nisi  in  devolutivo  pro  rata  scutorum  quinquaginta  monetse  Romanae,  et  ultra 
dictam  summam  admitti  debeant  in  suspensive  vel  devolutivo,  prout  juris  est,  firmis 
tamen  remanentibus  Apostolicis  ordinationibus,  stylis  et  privilegiis,  quae  forsan 
existerent  in  Tribunalibus  Urbis  et  districtus  ejusdem,  in  quibus  nihil  innovari 
inteudit. 

Demum  ad  conservandam  debitam  reverentiam  Pontificali  dignitati  Alexander 
Papa  IY.  Decretalem  edidit,  relatam  in  cap.  Quia  Pontificali  de  Ofilc.  et  Potest. 
Judic.  deleg.  in  6.;  ibi:  "  Quia  Pontificali  dignitate  pneditis  ob  reverentiam  sacri 
officii  plurimum  deferri  convenit,  et  eos  plus  aliis  honorari  decet,  ut,  cum  a  Judicibus 
vel  Conservatoribus,  a  Sede  Apostolica  deputatis,  contra  eos  ad  coactiones  aliquas 
sive  pcenas  fuerit  procedendum,  gradus  et  modestia  in  hujusmodi  processu  servetur, 
ita  quod  (eis  quadam  condigna  reverentia  supportatis)  ingressus  primo  ipsius 
Ecclesiae  vel  sacerdotale  interdicatur  ministerium,  ac  deinde  ab  officio  suspendantur, 
et  subsequenter  aggravetur  censura  Ecclesiastica  contra  eos,  nisi  forte  aliter  fieri 
suaserit  nimia  contumacia.  protervitas  sive  culpa."  Hanc  itaque  Decretalem  Sanc- 
titas Sua  inviolabiter  servari  mandavit  in  quibuscumque  Curiis  Judicum  appella- 
tionum tarn  C.  A.  quam  Metropolitanorum  et  etiam  Xuntiorum  Apostolicorum  et 
aliorum  quonimcumque. 

F.  A  Archiepisc.  Episc.  Abellineu.  et  Frequentius  Sacri  Concilii  Secretarius. 


Appendix.  285 

vi. 

Chirographus  Domini  Nostri  Benedicti  Papas  XIII.,  vi  cujus  decernitur  Promoter 
Fiscalis  Generalis,  qui  pro  Curiis  Ecclesiasticis  palrocinium  causarum  criminalium 
suscipiat,  assignato  in  singulos  menses  salario  viginti  quinque  scutorum,  a  Camera 
Apostolica  persolvendorum. 

12  Julii  1724. 

Postquam  mature  perpendiraus  atque  ctiam  propria,  dum  adhuc  in  Minoribus 
constituti  eramus,  experientia  cognovimus,  quam  intolcrabilis  cum  Ecclesiasticis  turn 
Regularibus  Praelatis  oueris  existeret  necessitas  sustinendi  et  prosequendi  in  hac 
Curia  Romana  lites  et  Controversias,  qme  a  Reis  inquisitis  per  viam  recursus  aut 
ap*pellatiom's  ab  illorum  Decretis  et  sententiis  isthinc  introducuntur :  ita  quidem,  ut 
plerique  illorum  ad  evitanda  ha3C  suis  Dioecesibus  et  pauperibus  Dicecesanis  ac 
Religionibus  respective  damnosa  dispendia  Causas  in  secundis  ct  ulterioribus  in- 
stantiis  indcfensas  derelinquant,  ex  quo  dein  sequitur,  quod,  cum  a  dictis  Curiis 
necessarise  informationes  Judicibus  non  suppeditentur,  ssepius  delinqueutibus  suc- 
cedat  absolutorias  extorquere  sententias  in  publicum  justitise  detrimentum  necnon 
scandalum  illorum,  qui,  in  Dioecesibus  et  Religionibus  de  veritate  criminis  bene 
informati,  delicta  impune  transire  rnirantur,  quae  malis  perseverantiaj  in  malo  bonis 
autem  subversions  causa  existit:  quam  ob  rem  his  tarn  perniciosis  in  bonorum 
morum  et  discipline  Ecclesiastica3  eversionem,  quibus  tamen  conservandis  omnes 
Superiores  omne  studium  et  vigilantiam  suam  impendere  deberent,  vergentibus 
exemplis  opportunum  poni  obicem  semper  et  summopere  desiderabamus. 

Postquam  igitur  Pivinae  placuit  Provident!*  Nos,  nullo  licet  meritorum  Xostrorum 
suffragio,  ad  supremuin  Apostolatus  apicem  elevare,  partcm  Pastoralis  solic-itudinis 
Nostne  in  ilia  consistere  vigilantia  reputantcs,  ut  delinquentium  sujiplino  ca-tcri 
emendentur,  et  vitia,  bonorum  contages,  eradicentur:  post  maturam  delibcrationein 
determinavimus  pra?dictis  perniciosis  exemplis  debitum  afferre  remedium,  libernndo 
Prselatos  et  Superiores  tarn  Ecclesiasticos  quam  Regulares  a  dispendioso  onere  pro- 
sequendi  in  hac  Curia  actiones  Fiscales  in  suorum  Judicatorum  defensionem  et 
providendo  iisdem  Ministrum  capacitate,  integritate  et  exj)erientia  pra?ditum,  qui 
tamquam  Promoter  Fiscalis  Generalis  supra  dictarum  Curiarum  mtiones  in  Judicio 
deducere  simulque  id  omne  pnestjire  dcbeat,  quoct  ad  bonam  et  Canouicam  defen- 
sionem necessarium  et  opportunum  videbitur. 

Itaque  ad  effectum  hujus  Xostrae  detcrminationis  ex  motu  Xostro  proprio  certe 
scientia  et  plenitudine  potestatis  Nostrae  absolute  creamus,  instituimus  et  staliUmvs 
in  perpetuum  officium  Promotoris  Fiscalis  Generalis  pro  prcefatis  Curiis  Ecclesiasticis, 
quod  dehinc  administrabit  deputanda  a  Nobis  et  Successoribus  Nostris  persona, 
supradictis  ornata  qualitatibus,  quas  tota  attentione  impendere  teneatrr  nomine  et 
vice  pnetcctarum  Curianim  in  patrocimum  Causarum  Criminalium,  per  viam  appella- 
tionis  aut  rccursus  ad  Tribunalia  aut  alias  Congregationcs  competentes  hujus  Civi- 
tatis  Xostrae  Romas  devolutarum  ct  ibi  adhuc  pendentiiim  aut  imposterum  devolven- 


•286  Appendix. 

itaruin.  Proinde  ut  dictus  Promoter  FIscalis  Genoralis  omnimoda  cum  applicatione 
liuic  suo  muneri  vacare  possit  et  debcat,  destinamus  et  assignamus  illi  pro  einolu- 
meiito  et  salaria  menstruo  viginti  quinque  scuta  singulis  mensibus  a  Xostra  Camera 
Apostolica  pcrsolvenda  ex  mandate  Thesaurarii  Xostri  Generalis ;  quo  salario  ipsum 
contentum  esse  nee  a  Prselatis  Sascularibus  aut  Eegularibus  aliam  quamcumque 
remuneratiouem,  etiam  titulo  aut  praetextu  honorariorum,  pro  f  unctionibus  et  labori- 
bus  suis  pmetendere  posse  volumus.  solis  literarum  hinc  inde  mittendarum  expensis 
exceptis :  quodsi  secus  fecerit,  gravibus  atque  etiam  gravissimis  pcenis  ad  Xostram 
Nostrorumque  Successorum  arbitrium  obnoxius  erit. 

Porro,  cum  intentio  Xostra  eo  collimet,  ut  ad  eflScacius  et  validius  dictarum  cau- 
sanim  patrocinium  Promotor  Fiscalis  Generalis  omnibus  illis,  quibus  Procurator 
Generalis  Fisci  et  Cameras  Xostrae  Apostolicae  fruitur,  subsidiis  necessariis  et 
opportunis  adjuvetur:  volumus  et  ordinamus,  quod  intervenire  et  assistere  debcat 
Congregationi  Criminali  Auditoris  Generalis  ejusdeni  Xostraj  Camerse,  in  cujus 
Tribunali  similes  causse  specialiter  agitari  et  judicari  solent,  Similiter  volumus. 
dicto  Promotori  Fiscal!  Proccssus  et  omnia  acta  gratis  communicari,  sicut  etiam  cita- 
tioncs  gratis  expediri,  expensas  quoque  pro  describendis  exemplis  aut  scripturis 
typo  edendis  necessarias  ab  Apostolica  Camera  Xostra  suppeditari,  eo  prorsus  modo, 
quo  IUEC  omnia  ex  parte  Fisci  a  Procuratore  Fiscali  Generali  fieri  etobscrvari  solent 
Ut  denique  saepe  dictus  Promotor  Fiscalis  in  qualicumque  actu  et  negotio  audiatur, 
volumus,  ipsum  in  omnibus  et  singulis  hujusmodi  causis  in  judicium  citandum, 
citationesque  ab  ipso  subscribendas  esse  eo  modo  et  forma,  quibus  a  Procuratore 
fiscali  subscribuntur,  ea  prorsus  lego  ut,  si  dictus  Promotor  non  fuerit  citatus,  neque 
\illa  citatio  subscripta,  actus  ex  citation  is  defectu  nullitatis  vitio  subjaceat. 

Declaramus  autem,  quod  praesens  Xoster  Motus  proprius  quoad  orr.nes  et  singulas 
dispositioues  locum  habere  debeat  in  illis  tantum  -causis,  in  quibus  fient  iustantiaj 
nomine  toloi'um  Pro-motorum  Fiscalium  ex  prcescripto  officii  sui,  nullo  modum  autem, 
quando  adhrcrentes  Fisco  in  judicio  stare  et  pro  defendendis  Juribus  propriis  alle- 
gare  et  scribere  vellent;  intalibus  enim  causibus  dictus  Promotor  Fiscalis  Generalis 
nullam  navare  operam,  neque  Camera  Xostra  Apostolica  ullos  facere  sumptus,  aut 
alius  quicumque  qualecumque  ones  aut  incommodum  subire  tenebitur. 

Postremo  volumus  et  decernimus,  Congregationem  Episcoporum  et  Regularium 
necnon  Auditorum  Generalem  Xostrae  Camene  Apostolicse  plena?  omnium  a  Xobis 
in  hoc  Motu  proprio  dispositarum  et  ordinatarum  rerum  observar.tire  invigilare,  ac 
insuper  hunc  Motum  proprium  (qui  a  supradicto  Auditore  Camera?  in  Codices  ac- 
torum  referendus  et  a  Xotario  Congregationis  Episcoporum  et  Regularium  in  suis 
libris  signandus  est)  plenum  omni  tempore  effcctum,  vigorem  et  executionem  sortiri 
debere,  nunquam  vero  obreptionia  vitio  aut  intentionis  Xostne  vel  alio  quopiam 
specialem,  individuam  et  expressaoi  mentionem  requirente  defectu  notari  et  impug- 
nari,  neque  in  contrarium  interpretari  aut  judicari  posse,  declarantes  irritum  et  inane, 
si  sccus  a  quolibet  scienter  vel  ignorantor  attentasi  contigerit:  non  obstantibus, 
quatenus  ratione  omnium  et  singulorum  praemissorum  opus  sit,  quod  in  prremissis 
intxjressc  habentes  seu  habere  prstendentes  ad  ea  non  fuerint  vocati  nee  audit!,  ne- 


Appendix.  287 

que  Regula  Xostne  Cancellarise  de  Jure  quaesito  non  tollendo,  aliisque  facultatibus 
et  privilegiis  pnefatis  quibiiscumquo  concessis,  Bulla  reformations  Pauli  V.  et 
omnibus  quibuscumque  aliis  Constitutionibus  et  Ordinationibus  Apostolicis  Nos- 
trorum  Pnedeccssorum,  Legibus  Civilibus  et  Canonids,  Statutis,  Reformationibus, 
Usibus,  Stylis,  Consuetudinibus  cseterisque  contrariis  quibuscumque,  quibus  omnibus 
et  singulis,  illorum  tenorcs  prsesentibus  pro  plene  expressis  et  de  verbo  ad  verbum 
insertis  habentes,  ad  prajmissorum  effectum  hac  vice  duntaxat  specialiter  derogamus, 
quoniam  talis  est  Xostra  certa,  expressa  et  determinata  mens  atque  voluntas.  Datum 
ex  Palatio  nostro  Apostolico  in  monte  Quirinali  die  12.  Julii  1724. 

Benedictus  Papa  XIII. 


VII. 

Decretum  S.    Congregations  Episcoporum  et  Regularium  pro  Causis    Criminalibus, 
issued  Dec.  18,  1835. 

Non  ita  pridem  a  S.  Congregatione  negotiis  et  consultationibus  Episcoporum  et 
Regularium  praposita  nonnullae  regulse  proescriptic  fueruut  pro  recta  et  expedita 
definitione  causarum  criminalium,  quse  a  Curiis  Episcoporum,  vel  Ordinariorum  ad 
eamdem  S.  Congregationem  in  gradu  ap[)ellationis  deferuntur.  Quas  quidem  prae- 
scriptiones,  quoniam  impedimenta  sublata  sunt,  qute  aliqua  ex  parte  earum  exe- 
quutioni  interposita  fuerant,  visum  est  Eminentissimis  Patribus  in  Conventu  habito 
XV.  Calend.  Januar.  MDCCCXXXV,  uberius  explicare,  et  cum  assensu,  et  approba- 
tione  S.  D.  N.  Gregorii  XVI.  iterum  promulgare,  ut  ab  omnibus,  ad  quos  pertinent, 
accuratissime  serventur.  Sunt  autem  qua3  sequuntur. 

I.  Reis  a  Curiis  Episcopalibus  criminali  judicio  damnatis  spatium  dierum  decem 
conceditur,  quo  ad  S.  Congregationem  Episcoporum  et  Regnlarium  appellare  possint. 

II.  Decem  dies  numerari  incipient  non  a  die,  quo  sententia  lata  est,  sed  a  die,  quo 
reo  vel  ejus  defensori  per  Cursorem  denuntiata  fuit. 

III.  Eo  tempore  elapso,  quin  reus,  vel  ejus  defensor  appellaverit,  latam  a  se  sen- 
tentiam  Episcopus  exequetur. 

IV.  Interposita  intra  decem  dies  appellatione  Curia  Episcopalis  acta  autographa 
totius  Causse  ad  S.  Cor.gregationem  continue  transmittat,  nempe : 

1.  Processum  ipsum  in  Curia  confectum. 

2.  Ejus  restrictum,  seu  compendiarum  expositionem  eorum,  qua?  ex  eodum   pro- 
cessu  emergunt. 

3.  Dcfensiones  pro  rco  exhibitas. 

4.  Denique  sententiam  latam. 

V.  Ipsa  Curia  reo,    ej  usque  defensori  denuntiabit,  appellationem  coram  eadem  S. 
Congregalione  prosequcndam  esse. 

VI.  Si  nemo  compareat  aut  si  appellationis  acta  negligenter  vel  malitiose  protra- 
haniur,  congruens   tempus   a   S.    Congregatione   pnefimetur,  quo  inutiliter  elapso, 
causa  deserta  censeatur,  et  sententia  Curia;  Episcopalis  executioni  mandetur. 


288  Appendix. 


VII.  Rco  ant  illi,  qui  ejus  defcnsionem  suscepit  tradendus  est  restrictus  proccssus, 
qui  a  Judico  ralatore  conflcitur. 

VIII.  Allegations,  seu  defensiones  Emmentissimis  Patribus   distribuendas  tjpis 
non  committantur,  nisi  Judex  relator  imprimendi  veniam  dederit. 

IX.  Causa  definietur  statuta  die  ab  Eminentissimis   Patribus  in  pleno  Auditorio 
congregatis. 

X.  Eidem  Congregation!  Procurator  Generalis  Fisci,  et  Judex  relator  intererunt. 

XI.  Judex  relator  de  toto  statu  causae  ad  Eminentissimos  Patres   referet,  et  Pro- 
curator Generalis  Fisci  stabit  pro  Curia  Episcopali,  suasque  conclusiones  explanabit. 

XII.  Post  base  Kminentissimi   Patres  judicium  proferunt,  sententiam  Curise  Epis- 
copalis  aut  confirmando,  aut  infirmando,  aut  etiam  reformando. 

XII L  Prolata  sententia  una  cum  omnibus  Actis  causse  ad  eamdem  Curiam  Epis- 
copalem  remittitur,  ut  earn  exequatur. 

XIV.  Revisio,  seu  recognitio  rei  judicatffi  non   conceditur,    nisi   ejus   tribuendie 
potestas  a  Sanctitate  Sua  facta  fuerit,  et  subsint  gravissima3  causaj,   super  quibus 
cognitio  et  judicium  ad  plenam  Congregationem  pertinet. 

XV.  Sciaut  denique  CurUe  Episcopales  per  novissimas  leges,  qu;e  ad  investiganda, 
et  coercenda  crimiua  pro  Tribunalibus   laicis  promulga'.se  sunt,  nihil  detractum  csse 
de  formis  et  regulis  Canonicis,  quas  proinde  sequi  omnino  dcberit  non  modo  in  con- 
ficiondo  processu,  ad  quern  spectant  hsec  verba  Edicti   diei   5.    Xovembris   1831.= 
Nihil  innovetur,  quantum  ad  judicia  ecclesiastica  pertinet=verum   etiam  in  poenis 
decernendis,  quemadmodum  in  appendice  ejusdem  Edicti  ita  cautum  est=Tribunalia 
jurisdictionis  mixtae  Clericos  et  Personas  Ecclesiasticas  iis  poenis  mulctubunt,  quas 
secundum  Canones,  et  Constitutiones  Apostolicas   Tribunal  Ecclesiaslicum  iisdem 
irrogaret.= 

J  A.  Card.  Sala  Prsefectus. 

J.  Patriarclu  Constantinopolitaiuis  Secrctarius. 


VIII. 

Circular  of  the  S.  C.  EE.  et  7?7?.,  dated  Aug.  1,  1851,  addressed  to  Bishops,  con- 
cerning criminal  causes  of  Episcopal  Curice. 

(FXGLISH   TRANSLATION  ) 

MOST  REV.  SIR  AND  BROTHER: — His  Holiness,  Pope  Pius  VII.,  ordained  in  his 
Constitution  Post  diuturnas  of  Oct.  30,  1800,  under  the  title  De  Juris  diet  ionibus  tri- 
bunalium  et  Judicum  criminalium,  Judiciorum  forma  et  ordine,  in  §  24,  the  following: 
"  In  future,  the  abbreviated  forms  which  are  already  in  use  in  the  government  of 
the  city  of  Rome,  will  be  employed  in  all  the  ecclesiastical  courts  of  the  city  of 
Rome  arid  of  the  rest  of  the  pontifical  territory." 

These  formulas,  particularly  those  of  the  legalization  of  the  process  (processus 
legitimatio)  are  absolutely  necessary  in  processes  or  trials  which  take  place  in 
Episcopal  courts,  according  to  the  old  mode  of  proceeding,  and  according  to  the 


Appendix.  289 

Decree  ef  the  Sacred  Congregation  of  Bishops  and  Regulars  dated  Dec.  18,  1835.» 
Yet  they  are  not  known  to  some  episcopal  chancellors,  as  this  Sacred  Congregation 
has  found  out  from  a  number  of  criminal  causes  adjudicated  by  Episcopal  courts  in 

the  first  instance For  this  reason,  it  has  been  deemed  opportune  to  have 

these  formulas  printed  anew  and  sent  to  the  various  Ordinaries,  so  that  each 
Episcopal  chancery  may  possess  a  copy.  I  have  the  honor  to  enclose  you  a  copy.  * 

At  the  same  time  I  forward  you  a  copy  of  the  Decree  of  Dec.  18,  1835,  in  order 
that  it  may  be  posted  in  the  Episcopal  chancery,  and  carefully  observed.  3  .  .  .  . 

Furthermore,  in  order  that  the  instigators  aud  adherents  of  the  Fisc  (namely  the 
accusers,  the  complainants,  denouncers,  etc.,  \vlio  are  on  the  side  of  the  official 
procurator  fiscalis),  in  case  they  feel  themselves  aggrieved  by  the  sentence  of  the 
first  instance,  and  in  consequence  appeal  to  this  Sacred  Congregation,  may  know 
their  obligations,  I  enclose  you  herewith  a  copy  of  the  resolution  taken  in  a  full 
meeting  of  the  Sacred  Congregation,  held  Feb.  22,  1839. 4 

Again,  in  order  to  expedite  the  hearing  of  causes  appealed  to  this  Sacred  Congrega- 
tion from  Episcopal  courts,  you  will  kindly  inform  the  members  of  your  Curia,  that 
when  the  accused,  who  has  been  condemned,  appeals  within  ten  days  after  receiving 
official  notice  of  his  sentence,  to  this  Sacred  Congregation,  and  his  appeal  is  admitted 
by  the  Congregation,  and  this  admission  has  been  made  known  to  the  Bishop,  with 
the  direction  to  cause  the  ulterior  steps  to  be  taken  within  the  peremptory  term  of 
twenty  days,  the  members  of  the  Curia  are  then  bound  to  formally  notify  the  appell- 
ant that  if  he  wishes  to  prosecute  his  appeal  before  the  Sacred  Congregation,  he  must 
within  the  peremptory  term  of  twenty  days,  appoint  in  this  city  of  Rome,  an  advocate 
or  procurator,  approved  in  the  Roman  Curia,  and  also  make  sure  that  this  advocate 
will  undertake  the  case,  and  will,  upon  having  deposited  with  the  judex  relator,  the 
customary  sum  of  money  to  pay  the  costs,  in  case  of  defeat,  ask  for  the  Acts  of 
the  cause  at  the  rooms  of  the  judex  relator ;  that  if  the  appellant  fails  to  do  this 
within  the  twenty  days,  he  will  be  looked  upon  as  having  renounced  his  appeal, 
and  the  Sacred  Congregation  will  issue  a  formal  declaration  to  that  effect. 

"Where,  on  the  other  hand,  the  parties  representing,  urging  or  adhering  to  the 
procurator  fiscalis  appeal,  and  that  appeal  is  admitted  by  the  Sacred  Congregation, 
and  this  admission  made  known  to  the  Bishop ;  the  appellee  must  also  become  a 
party  to  the  appeal,  and  consequently,  he  must  be  informed  of  the  above  interposi- 
tion and  admission  of  the  appeal,  and  be  enjoined  by  the  Bishop's  court  to  appoint 
within  the  peremptory  term  of  twenty  days,  an  advocate  or  procurator  from  among 
those  approved  in  the  Roman  Curia,  and  if  he  fails  to  do  so,  it  will  be  assumed 
that  he  does  not  desire  to  take  part  in  the  appeal ;  and  consequently,  the  pro- 
ceedings in  the  appeal  will  at  the  instance  of  the  adherents  of  the  fisc,  be  continued 
to  the  final  sentence  inclusive,  without  any  further  interpellation  of  the  appellee. 
The  same  notification  must  also  be  sent  to  the  adherents  or  instigators  of  the 
diocesan  prosecutor. 

1  See  Appendix  VII.  *  See  this  copy  below  in  Appendix  IX. 

3  See  Appendix  VII.  4  See  Appendix  X. 


2  go  Appendix. 

These  notifications,  together  with  the  report  of  the  messenger  delivering  them, 
must  be  sent  to  this  Sacred  Congregation. 

Finally,  you  are  reminded  that  the  acts  or  minutes  concerning  the  serving  of  the 
sentence  upon  the  accused  and  the  latter's  appeal,  together  with  the  report  of  the 
messenger  must  be  inserted  in  the  Acta  of  the  trial  or  proceedings  ;  that  these  acts 
should  be  provided  with  a  chronological  index,  and  should,  in  accordance  with  the 
Decree  of  Dec.  18,  1835,  art.  iv.,  be  sent  without  delay  tc  this  Sacred  Congregation, 
together  with  the  synopsis  of  the  auditor,  the  defence  and  an  accurate  copy  of  the 
sentence,  the  original  of  which  remains  in  the  Episcopal  Cuiia. 

Have  the  goodness,  Most  Rev.  Sir,  to  acknowledge  the  receipt  of  this  circular. 
Fr.  .A.  F.  CARD.  OKIOLI,  PREFECT. 

D.  Patriarch  of  Constantinople,  Secretary. 
Home,  Aug.  1,  1851. 


IX. 

formulas  of  trials  in  criminal  and  disciplinary  causes,  as  prescribed  by  Pope  Pius 
Vff,  and  made  obligatory  in  the  circular  of  the  S.  C.  EE.  et  RR.  Aug.  1,  1851. 

(English  Translation). 

In  order  to  expedite  the  hearing  of  the  causes  of  accused  persons,  it  is  deemed  nec- 
essary to  shorten  some  of  the  formulas  which  have  been  hitherto  used  in  the 
compilatio  processus. 

First,  the  entire  acts  of  the  trial  or  proceedings,  such  as  those  relating  to  the 
"  Corpus  delicti,"  the  admonitions,  the  "  litis  contestatio  "  etc.,  of  whatsoever  kind 
or  nature  they  may  be,  are  to  be  given,  in  future,  in  the  vernacular  language.  This 
will  save  the  repetitions  which  formerly  had  to  be  laid  in  the  mouth  of  the  accused 
on  occasion  of  admonitions,  of  the  "  litis  contestatio  "  and  other  acts  of  a  similar 
character.  For,  as  these  acts  or  formulas  were  made  in  Latin,  it  became  necessary, 
for  the  purpose  of  proving  that  they  were  understood  by  the  accused,  who  for  the 
most  part  was  ignorant  of  Latin,  that  the  accused  should  each  time  repeat  in  the 
vernacular,  the  Latin  words,  or  formula  laid  in  his  mouth  by  the  auditor  or  judge. 
As,  in  future,  the  vernacular  language  will  be  used  in  all  these  proceedings,  wheth- 
er they  regard  the  accused  or  the  witnesses,  it  will  be  sufficient  for  the  notary,  to 
write  down  merely  the  answers,  just  as  they  are  given. 

Second,  the   acts   (acta)  in  regard  to  the  "  Corpus  delicti,"  the  opinion  of  experts 
of  all  kinds,    the  finding  of   tools,  of  clothes,    and   other   things   or   indicia,  are 
all  to  be  simply  drawn  up  and  signed  by  the  notary,  so  that  it  will  not  be  net  • 
to  examine  the  witnesses  intervening  or  also  the  experts  individually. 

Tftird,  in  order  that  the  legalization  of  the  piocess  (kgitimatio  procespus),  especial- 
ly the  legalization  per  confrontationem  may  be  less  complicated  and  less  tedious,  it 
will  be  advisable  that,  in  case  the  accused  refuses  to  legitimate  the  process  per  de- 
darationem,  no  personal,  but  only  a  verbal  confrontation  of  the  witnesses  take 


Appendix.  291 

ftlace ;  that  is,  that  instead  of  the  witnesses  being  personally  placed  in  the  presence 
ft  the  accused,  only  their  deposition  be  read  to  him  by  the  judge  (auditor)'  and 
fcotary,  and  he  be  allowed  to  make,  and  have  put  on  record,  whatever  exceptions 
he  desires  to  make  against  the  persons  and  the  depositions  of  the  witnesses.1  For 
this  purpose,  there  is  added  at  the  end  of  this  enactment,  the  respective  formula  of 
the  legalization  of  the  process,  which  contains  the  substantial  parts  of  the  act 
The  iudge  should  endeavor  to  cause  the  legalization  to  be  made  in  as  brief  and  sim- 
ple a  manner  as  possible. 

"U'itli  this  act  (the  kgitimatio),  the  process  becomes  legitimized  in  all  things  what- 
soever, whether  they  are  already  begun,  or  are  yet  to  be  begun,  even  though  the 
written  defences  have  been  already  handed  in,  and  that  wiih  all  the  legakeffects  of 
a  true  and  real  legitimation. 

Although  for  trials  or  processes,  where  there  is  question  not  merely  of  the  ac- 
cusation of  a  capital  offence,  but  where,  also,  considering  the  nature  of  the  proofs  ex- 
tant, sentence  inflicting  capital  punishment  may  be  pronounced  and  executed,2  a 
new  regulation  may  be  issued,  should  it  be  found  opportune;  yet  it  may  be  left  to 
the  honest,  impartial  and  truthful  judgment  of  the  advocates  of  the  parties,  in  this 
case,  to  demand  the  legalization  in  the  proper  sense  of  the  term.  In  case  they  de- 
mard  this  legitimatio,  it  will  be  discretionary  with  the  court  to  grant  it  either  by 
way  of  personal  confrontation  of  the  witnesses,  or  by  way  of  their  formal  repetition. 
The  formula  of  the  personal  confrontation,  used  at  present,  is  also  to  be  made 
shorter,  and  for  this  purpose  there  is  added  at  the  end  of  this  enactment,  an  abrev- 
iated  formula  of  personal  confrontation. 

The  above  practical  rules  and  formulas  shall  be  introduced  into  all  the  tribunals 
of  the  city  of  Rome  and  of  the  Pontifical  Territory,  those  places  not  excepted, 
which  have  hitherto  not  possessed  the  privilege  of  granting  the  personal  confronta- 
tion, in  the  legalization  of  the  process. 

"Whenever  a  doubt  arises  as  to  the  application  of  these  rides  and  formulas,  it 
will  be  the  right  and  duty  of  the  procurator  fiscalis  to  give  the  required  explanations. 

A.    Formula  of  leyalizat' on  by  way  of  verbal  confrontation. 

Date 

The  accused,  X.  X.,  having  appeared  before  the  auditor  (judge)  and  me,  the  notary 
.  .  was  again  admonished  to  tell  the  truth  respecting  himself,  and  was  sworn  on  the 

1  Therefore  according  to  this  enactment,  the  processes  informations  becomes  legalized  by 
this  simple  reading  of  the  testimony,  to  the  accused ;  and  the  formal  repetition  of  the  witnesses 
need  not  take  place,  even  where  the  accused  refuses  to  legalize  the  proceedings  per  dcclara- 
tioncm. 

2  This  has  reference  to  the  ecclesiastical  courts  of  Rome  and  of  the  Pontifical  territory, 
where  these  courts,  owing  to  the  privilege  of  immunity,  formally  took  cognizance  of  capital 
offences  of  ecclesiastics.    At  present,  however,  the  privilege  of  immunity  is  scarcely  anywhere 

,;:ed  by  the  civil  government.  Hence,  capital  offences  are  adjudicated  solely  by  the 
secular  courts.  Dismissal  from  office  or  parish  inflicted  by  the  ecclesiastical  court  is  compared 
by  canonists  to  a  capital  punishment  of  the  secular  court. 


292  Appendix. 

holy  Gospels  to  tell  the  truth  in  regard  to  other  parties.  Thereupon,  for  the  pur- 
pose of  legalizing  the  process,  the  testimony  of  the  witnesses  N  N.,  examined  un- 
der date  of was  read  to  the  accused,  in  full,  and  word  for  word.  Being  then 

asked  whether  he  had  anything  to  say  against  the  persons  or  depositions  of  the  wit- 
nesses, and  being  informed  at  the  same  time,  that  by  this  act,  he  was  deprived  of 
all  right  to  have  the  witnesses  repeat  their  testimony,1  answered :  After  you  the 
(auditor  or  judge),  have  caused  the  notary  here  present  to  read  for  me  the  deposi- 
tion of  the  witnesses  N.  N.,  examined  under  date  of ,  and  having  full}'  un- 
derstood it,  I  have  to  say  etc.  (Here  follow  his  answers,  which  must  be  accurate- 
ly taken  down  by  the  notary.) 
Afterwards  etc.,  etc. 


B.  Formula  of  legalization  by  ivay  of  Personal  confrontation. 

Date 

The  accused  N.  N.  having  appeared  before  the  auditor  and  me  the  notary  .  .  . 
was  again  admonished.  '.  .  (as  in  the  preceding  formula).  Thereupon,  the  witness 
N.  N.  was  \called  in,  and  again  took  the  oath  to  tell  the  truth.  Then,  for  the  pur- 
pose of  legalizing  the  process,  the  previous  deposition  made  by  the  witness,  under 

date  of was  read  to  him  in  full,  and  word  for  word.  Being  asked  whether  he 

now  confirmed  his  previous  statements,  or  whether  he  wished  to  change  them  in 
any  point,  he  answered :  (Here  follow  his  answers,  which  must  bo  carefully  and 
accurately  written  down  by  the  notary). 

After  this  the  accused  was  asked  whether  he  had  anything  to  say  against  the  per- 
son or  testimony  of  the  witness,  and  being  informed  at  the  same  time  ...  (as  in  the 
preceding  formula),  answered:  After  you  have  caused  the  testimony  of  Jhe  wit- 
ness N.  N.  here  present .  .  .  (as  in  the  preceding  formula)  I  have  to  say:  (Here  fol- 
lows his  answer.  )~ 

Afterwards,  etc. 


Resolution  of  the  Sacred  Congregation  of  Bishops  and  Regulars,  adopted  in  the  meet- 
ing  held   Feb.    22,    1839. 

In  the  Curia  of  the  exempted  abbey  of  Pubiaco,  there  was  instituted,  at  the  in- 
stance of  the  surgeon  Aloysius  A.,  and  his  daughter  A.,  a  criminal  proceeding 
against  Aloysius  M.,  for  rape,  and  for  being  the  cause  of  the  girl's  pregnancy,  and 

1  Where  there  are  several  witnesses,  the  testimony  of  each  must  be  read  In  full  to  the  ac- 
cused.   But  the  above  declaration  need  not  be  repeated. 

2  The  witness  has  a  right,  If  he  wishes,  to  reply  to  the  accused.    The  accused  may  In  turn 
answer  the  witness,  and  so  on.    The  accused  has  the  riffht  to  make  the  last  answers. 


Appendix.  293 


for  attempted  abortion.  After  the  proceedings  had  been  closed  and  the  allegations 
of  both  parties  handed  in,  the  case  was  decided  by  the  criminal  court  of  His  Emmi- 
nence  Cardinal  and  Abbot  Spinola,  on  Jan.  3.  1839,  as  follows:  "  Non  constare  de 
stupro,  ideoqwe  Aloysium  J/.  .  .  es-se  dimittendum  ex  hadenus  deductis :  in  reliquis 
provideat  Emiitentissimus  Abbas  ad  mentem."  This  mens  consisted  in  prudential 
measures  for  the  purpose  of  preventing  farther  excitement  and  animosities  between 
the  contending  parties,  and  in  strictures  upon  the  advocate  C.,  for  having  used  cer- 
tain unbecoming  expressions  in  his  written  allegations. 

After  receiving  notice  of  this  resolution,  the  accuser  A.,  and  his  daughter  A., 
gave  formal  notice  to  court  of  the  Abbey  of  Subiaco,  that  they  appealed  against  the 
above  sentence. 

"Whereupoa  His  Eminence,  the  Abbot,  sent  to  this  Sacred  Congregation  of 
Bishops  and  Regulars,  all  the  acts  of  the  process,  together  with  the  synopsis  of 
the  procurator  facali-s,  and  the  allegations  or  deductions  of  both  parties,  as  made 
in  the  Curia  of  the  first  instance,  and  at  the  same  time,  proposed  the  following 
question:  "vHiether  the  appeal  interposed  in  the  case  was  admissible  or  not? 

The  judex  relator  then  considered  it  his  duty  to  inform  each  of  the  Cardinals  of 
this  Sacred.  Congregation  of  the  proposed  question,  in  order  that  it  might  be  sub- 
mitted to  their  Eminences,  for  their  decision  in  the  meeting  of  Feb.  22,  1839. 

Resolution :  In  the  meeting  of  the  Congregation  held  in  the  Apostolic  Palace 
of  the  Vatican,  on  the  22d,  of  Feb.  1839,  their  Eminences  decided  as  follows  : 
'•  Affirmative  ad primam  partem,  negative  ad  secundam,  prasstita  fide  ju-ssione  per 
in^tltorem  de  reficiendis  expensis  tarn  primi  quam  ulterius  judicii  in  eventu  succum- 
bentice  et  certioretur  Eminentissimus  albas,  etiam  pro  intimatione  ad  constiiuendum  de- 
Jensorem  intra  viginti  dies." 

Pncsens  resolutio  aduotetur  in  libro  decretorum. 

A.   Bizzarri,    Sub-Secretarius. 


XI. 

DECREE  OF  THR  ROMAN  COUNCIL  HKLD  BY  BENEDICT  XIII..  IN  1725, 
CONCERNING  THE  OATH  ADMINISTERED  TO  THE  ACCUSED. 


Tit.  XIII:     Dsjfirejurando. 

Cap.  II.  Juramentum  alias  exigi  solitum  a  Reis  criminaliter  inquisitis,  riiiin  judic- 
ialiter  uti  Principales  cxaminantur,  in  posterum  ne  ullo  modo  ab  iis  in  quocunque 
Tribunali  exigatur.  pnesenti,  constitutione  inhibetur. 

Reprehensibile  judicari  non  debet,  si  secundum  temporum  varietates,  ubi  id  neccs- 
sitas  vel  utilitas  exposcat,  consuetudines  et  leges  quandoque  varicntur  humanit;  ipse 
enim  Deus  et  Dominus,  Aeternus  Legifer  noster,  ex  iis,  qu;e  veteri  in  Testamento 
statuerat,  multa  postmodum  mutavit  in  novo.  Stylum  itaque  in  quibusdam  Curiis 
Sccularibus  et  Ecclesiasticis,  nullo  unquam  jure  prseceptum,  inolevisse  perpendunus, 


294  Appendix. 

ut  Judices  sive  eoruui  Notarii  aut  ScribiB,  Reos  criminali  facinoro  accusatos  examina- 
turi,  juramentum  ab  his  prajstari  jubcant  de  veritate  dicenda.  Quia  tamea  ex  hoc, 
quoiidiana  sicuti  est  experieiitia  compertum,  nee  in  Fisci  favorem  HOC  contra  Reos 
ipsos,  qui  ut  plurimum  patrata  a  se  negant  delicta,  utilitatis  aliquid  elici  non  igno- 
ratur,  adeo  ut  peculiar!  in  hac  facti  contiugentia  nedum  talia  deinceps  jurarnenta 
exigendi  necessitas  non  adesse  probetur,  imo  potius,  no  ilia  pcnitus  cxigantur,  sacri 
ipsa  juramenti  ratio  postulet  ac  suadeat :  hinc  est,  quod  Nos,  rationibus  utrinque 
perpensis,  et  quam  plurium  inluerentes  insignium  Tribunalium  praxi,  juramontum 
ipsum  per  Reos  sic  criminaliter  inquisitos  prajstandum  consulto,  dum  uti  Pnncipalts 
tantummodo  constituuntur,  tollendum  et  submovendum  ducimus  ;  prout,  sacro  etiain 
approbante  Concilio,  praesenti  hac  constitutione  pmnino  tollimus  ac  submoveraus :  nee 
juramentum  hujusmodi  ullatenus  a  Reis  eisdem,  nisi  tamenut  testes  quoad  alios  exam- 
inentur,  in  futurum  per  quoscunque  Judices  et  Ministros  sub  quovis  prsetextu,  causa 
ct  qusesito  colore,  volumus,  exigatur;  alias  examen  sive  constitutum  et  Acta  omnia 
nulla  sint  eo  ipso  et  irrita  omnique  careant  contra  Reos  effectu. 


XII. 

DECREE  OF  THE  S.  C.  EE.  ET  RR.,  REGARDING  APPEALS  MADE  TO  THE 

HOLY   SEE,    IX   CRIMINAL   AND   DISCIPLINARY   CAUSES   OF 

ECCLESIASTICS,    ADJUDICATED    IN    THE    MANNER 

LAID  DOWN   IN  THE  INSTR.  OF  JUNE  11, 

1880,    AND     CUM    MAGNOPERE, 

OF  1884. 

DISPOSITIO  PROVISOIUA 
pro  actis  appdlationis  in  causis  criminalibus. 

Sacra  hsec  C.  Epp.  et  RR.  pro  certo  liabens  quod  modi  procedendi  oeconomice, 
ordinati  per  Instruotioncm  dioi  11  Junii  1880  pro  curiis  ec'clcsiasticis  in  causis 
criminalibus  qnae  clericos  respiciunt,  observari  quoque  debeant  in  actis  appellationis 
quse  apud  ipsum  Sacrum  Consessum  interponitur  a  sentcntiis  ipsarum  curiarum, 
opportunam  censuit  publicationem  sequentis  dispositionis :  ' 

I.  Defcnsor  rei  vel  reorum  eligendus  inter  advocates  a  sacris  Congregationibus 
approbatos,  prscvio  deposito  de  more,  prudenter  notitiam  sumit  de  restrictn  ct 
processu  corarn  Judico  relatore. 

ii.  Quatcnus  vero  rationo  causte  expedire  censeat  Emus.  Dominus  Card. 
Pra3fectus  injungitur  dofensori  sorvaro  socretum  cum  jurisjurandi  vinculo. 

in.  Exhibitis   dcfensionibus   in   scriptis,   eaidem    quatenus    Emus.    Dom.    Card- 

1  Acta  S.S.,  Vol.  xix.  p.  290. 


Appendix.  295 


Pncfectus  aeqne  opportunum  censcat.  communicari  queunt  procurator!  nscali  curiaj 
a  (j'/a.  r,t  ille  si  nccessc  esse  crediderit,  in  scriptis  respomleat. 

iv.  DC  responso  procuratoris  fiscalis  defensor  sub  dcbita  cautela  cognitionem 
-sumcre  potest  coram  Judice  relatore,  ut  replicare  ultimo  valeat  paritcr  in  scriptis. 

v.  Oiiiniuo  autcm  cxcluditur  defensoris  et  procuratoris  fisci  pnesentia  in  comitiis 
Cordinatium  qnando  causa  resolvonda  proponitur. 

vi.  Excepta  dispositione  pnecedentium  articulorum,  in  sua  plena  vi  quoad  omnes 
partes  ea  omnia  permanent  qtire  S.  C.  constituit  per  decretnm  diei  18  Decembris 
1835,  per  literas  circulares  diei  1  Augusti  1831,  ct  per  ordinationem  diei  6  Junii 
1847.' 

Ex.  and.  SSmi  diei  26  Martii  188G. 

SSmus.  Onus.  Xoster  LEO  div.  prov.  PP.  XIII.  audita  relatione  pncsentis  dispo.si- 
tionis  ab  infrascripto  S.  C.  Epp.  et  RR.  Secretario,  cam  in  omnibus  approbate  ct 
confirmare  dignauis  est. 

Romtc  die  et  anno  quibus  supra. 

J.  Card.  FERRIES:;,  /' 

Fr.  AXT.  M.   Archp.  Palmy ren.,  Secret. 


IXSTRCCTIO    S.    CON'GREGATIOXIS   DE    PROP.    FlDE  SCPUA    SL'SPEXSIONIBUS   EX 
IXFORMATA   COXSCIEXTIA. 

Omni  tempore  sollicita  fuit  Ecclcsia  ut  non  soluin  ascensus  ad  sactos  Ordines 
intcrdiccrctur  indignis,  verum  etiam  ab  corumdem  cxcrcitio  criniiuosi  suspend 
inanerent. 

Cum  autem  occultorum  quoque  criminum.  qiueque  proderenon  cxpediret.  facilis  et 
prompta.  nempe  a  judiciariis  formis  libera,  coercitio  aliquando  necessaria  sit  ad  sacri 
rninisterii  dignitatem,  et  fidelium  utilitatem  tuendam ;  hinc  sapientissimo  consilio 
Tridentini  Patres  Sess.  xxiv.  cap.  1.  de  Reform,  decrevermit :  il  Ei  cui  ascensus  ad 
sacros  ordines  a  suo  Prcelato  ex  quacumque  cavsa,  etiam  ob  occnltam  cri/nen,  quoinodo- 
UM.  etiam  extrajudidaliter  fuerlt  intenlictits,  aid  qui  a  suls  ordinibu.s  seu  gradibus 
vd  dignitatibus  ecclesiasticis  ftierit  suspensus,  nullu  contra  ips!us  Prcelaii  volunlatem 
co  itcessa  Ik-entia  de  se  promoter  if aciendo,  aut  ad  priors  ordinen,  gradus  et  dlgnitates 
sire  honores  restitulio  suffragetw" 

Ex  hoc  provido  decreto,  in  co  quod  rcferttir  ad  Clericnrum  crimina,  qi:a3  extrajn- 
dicialem  suspensionem  ab  ecclesiasticis  omciis  morentur.  iamdiidnni  in  usu  f;;;t 
snspensionis  poenaex  causis  Prrelato  notis  ;  qua;  nempe  audit  suspensio  ex  informata 
consrientia.  Ad  hoc  itaquc  ut  in  cadem  infligenda,  cum  rnajori  qua  potest  cautela, 
et  securitate  Ordit  arii  catholicarum  missionum  procedant,  S.  Congregatio  de 

1  Acta  S.  S.,  Vol.  xix.,  p,  298. 


296  Appendix. 

Propaganda  Fide  prsesentem  instructionem  cdendam  censnit,  cui  iidem  Ordinarii  in 
adhibendo  hoc  extraordinario  remedio  sese  couformare  curabunt. 

I.  Suspensio  ex   iuformata-  consdentia,  non   secus  ac  ilia,  qiue  per   judicialem 
scntentiara  infligitur,  personam   ecclesiasticam  a  suis   ordinibus,  seu  gradibus,  vel 
dignitatibus  ecclesiasticis  exercendis  interdicit. 

II.  In  hoc  prrecipue  ipsa  differt  a  judicial!  suspensiore,  quod  adhibetur  tamquam 
extraordinarium  remedium  in  pcenam  admissi  criminis  ;  ideoque  ad  ejusdem  imposi- 
tionem  non  requirunttir  nee  forma?  judiciales,  nee  canonical  admonitiones.     Satis 
erit  proinde,  si   Pnelatus   hanc  poenara  infligens,   simplici   ututiir  praecepto,   quo 
declaret    se    suepensionem  ab  exercitio  sacrorum  officiorum    vel  ecclesiaaticorum 
munium  indicere. 

IIL  Hujusmodi  prseceptum  semper  in  scriptis  iutimandum  est,  die  et  mense  desig- 
nate ;  ideoque  autem  fieri  debet  vel  ab  ipso  Ordinario,  vel  ab  alio  expresso  ipsius 
mandate.  In  eadem  tamen  intimatione  cxprimendum  est,  quod  ejusmodi  punitio 
irrogatur  in  vim  Tridentini  decreti,  Sess.  xiv..  c.  1  de  reform.,  ex  informata 
conscientia  vel  ex  causis  ipsi  Ordinario  notis. 

iv.  Debent  insuper  exprimi  partes  exercitii  ordinis  vel  officii,  ad  quas  extenditur 
suspensio ;  quod  si  suspensus  interdictus  sit  ab  officio,  cui  alter  in  locum  ipsius 
substituendus  est,  ut  puta  (Econonnis  in  cura  animarum,  tune  substitutus  mercedem 
percipiet  ex  fructibus  beneficii  in  ea  portione,  qu«e  juxta  prudens  Ordinarii  arbitrium 
taxabitur.  At  si  suspensus  in  hac  taxatione  se  gravatum  senserit,  moderationem 
provocare  poterit  apud  curiam  Archiepiscopalem,  aut  etiam  apud  Sedem  Apostolicam. 

v.  Exprimi  item  debet  tempus  duratiouis  ejusdem  pcenju.  Abstineant  tamen 
Ordinarii  ab  ipsa  infligenda  in  perpetuum.  Quod  si  ob  graviores  causas  Ordinarius 
censuerit  cam  imponere  non  ad  tempos  dotcrniinatum,  sed  ad  suum  beneplacitum, 
tune  ipsa  habetur  pro  temporanea,  ideoque  cessabit  cum  jurisdictione  Ordinarii 
suspensionem  infligentis. 

vi.  Suspensioni  ex  informata  conscientia  justam  ac  legitimam  causam  prrcbet 
crimen,  seu  culpa  a  suspense  commissa.  HJBC  autem  debet  esse  occulta,  et  ita 
gravis,  ut  talem  promereatur  punitionem, 

vn.  Ad  hoc  autem  ut  sit  occulta  requiritur,  ut  ncque  in  judicium,  neque  in  rumores 
vulgi  deducta  sit,  neque  insuper  ejusmodi  numero  et  qualitati  personarum  cognita 
sit,  undo  delictam  censeri  debeat  notorium. 

vm.  Verum  tenet  etiam  suspensio  si  ex  pluribus  delictis  aliquod  fuerit  notum  in 
vulgus:  ant  si  crimen,  quod  ante  suspensionem  fuerat  occultum,  deinceps  post 
ipsam  fuerit  ab  aliis  evulgatum, 

IX.  Prudenti  arbitrio  Prrclatorum  relinquitnr  suspensionis  causam,  seu  ipsam 
eulpam  delinquent!  aut  patefaccre,  autreticere.  Partes  alioquin  pastoralis  sollicitu- 
dinis  et  charitatis  eorumdcm  erunt.  ut  si  istiusmodi  poenam  suspense  manifestare 
censuerint,  ipsa  ex  paternis,  quas  interponent,  monitionibus,  nedum  ad  expiationem 
culpa?,  verum  etiam  ad  emendationem  deliuqueutis,  et  ad  occasionem  pcccandi 
eliminandam  inserviat. 


Appendix.  297 

x.  Meminerint  vero  Pntsules.  quod  si  contra  deeretum,  quo  irrogata  fiiit  euspen- 
sio.  promoveatur  recurstis  ad  Apostolieam  Sedein,  tune  apud  ipsam  comprobari  debet 
culpa,  qua1  eidera  pnebuit  oeeasioneni.  Consultant  idcirco  erit,  ut  aritoquam  haec 
poena  iufiigatur,  probationes  illius,  qnaiitumvis  extrajudicialiter  et  sccreto  colli- 
gantur;  ita  ut  eo  ipso,  quod  cum  omni  ccrtitudine  culpabilitatis  in  punitione 
inferenda  proceditur,  si  deinccps  causa  exaniinanda  est  apud  Apostolicam  Sedem. 
probationes  erimii'is  iu  eas  diffictil tales  liaud  impiugaiit,  quse  ut  plimmmn  occurrunt 
in  istiusmodi  judiciis. 

XL  A  decreto  suspensionis  ex  iuformata  oonscientia  noti  datur  appellatio  ad 
tribunal  superioris  ordinis,  Postquara  idcireo  elericus  intimalionem  suspensionis 
habuerit,  si  nihilomiuus  appdlatiouem  interpouere,  ojusque  obtcutu  in  altare 
ininistrare,  sen  quovis  modo  suuin  oivdinem  solemniter  exercere  prajsuinafc,  statim 
incidit  in  irregularifciteBi, 

XIL  Semper  tamea  patet  aditus  ad  Apostolieam  Scdem  ;  ct  in  easti  qvjo  elericus 
absque  sufficieuti  ae  raiionabili  eau^a  se  hac  poena  multatura  rep«tet,  rocurrere 
poterit  ad  Summum  Puiitiiieem.  Ijiterira  tamea  in  vigore  permanet  deeretum  sus- 
pensionis  us<{ue  diini  ab  ipso  Pontifice,  vel  a  S.  CougregaUonc,  qujg  de  reeursu 
judicare  debet.  non  fttcrit  rescissutn  aut  etiam  moderatum. 

XIIL  Ceterum  ex  qinj  istiusmodi  jxeua  est  remedium  omnino  extraordinarium, 
quod  prajsertini  ad  expiationera  critainum  absque  formis  judiciariis  adlubetur,  prse 
oculis  liabcajit  Pr.tlati  id  quod  eapienttssime  admooet  Sumrnus  Pontifox  s.  m. 
Beuedietus  XIV,  in  sno  tract;itu  de  Synodo  D'ueces.  1.  xiL,  c,  8,  n.  6,  quod  niruirum 
reprehensibiUs  foret  ttpiseopus,  si  ia  s«a  synodo  deelararet,  si  deinecps  ex  privata 
tantuin  scientia  cum  posna  suspensiouis  a  diviais  amraadversurura  ia  elerieos,  quos 
gravitcr  deliqiiisse  compcrerit.  quamvis  eortim  delietum  non  possit  ;n  foro  externo 
eoncludenter  probari,  ant  illud  non  ex\«diat  in  aliorum  notitiam  deducere. 

Booue  ex  ^Edibus  S.  CongregaUonis  de  Prop.  Fide  die  20  Octobris  1884 


XIV. 

Recent  Decision  of  the  S.  C.  de  Prop.  Fide  concerning  the  Dismissal  and  Transfer  of 
our  Rectors  who  are  not  Irremovable. 

a  CONGREGATIONS  DI  PROPAGANDA,  SEGRETARIA. 

N.  2311.  ROMA,  li  20  Maggio,  1887. 

OGGETTO. 

Sid  modo  di  proeedere  nel  eambiare  i  Rettori  amovibilu 
Erne  ac  Rme  Dne  Dne  Obne. 

In  Concilio  Plenario  Baltimorensi  III.,  Tit.  X.,  Cap.  3,  §  1,  2.  nee  non  in  Instruc- 
tions hu  jus  S.  Congregationis,  qua?   ineipit  "Cum   Maguopere  "  circa  causas   Cleri- 


298  Appendix- 


corum,  normrje  ac  reguke  prsescribuntur  circa  modum,  quo  procedi  debet  in  causis 
Clericornm.  Porro  non  adhuc  apprime  determinatum  ac  statutum  erat  quibus  in 
casibus  Episcopi  ad  legalis  processus  confcctionem  tcncrcntur,  cum  de  Rectoribus 
Missionum  aut  ab  officio  privanclis,  aut  ad  aliud  officium  transferendis  agerotur,  ubi 
de  amovilibus  sermo  sit. 

Jamvero  Emi  Patres  S.  Consilio  Christiano  nomini  propagando  pra?positi  in 
Comitiis  Gencralibus  die  28  Martii  1887  habitis  sequcntia  decrcvcruiit :  "  Tu  casibus 
remotionis  peragenda;,  sen  privationis  totalis  ab  officio  Rectoris,  iu  poenam  criminis 
vel  reatus  disciplinaris  canonicus  procossus  juxta  pnefato  Instructionis — '  Cum 
Magnopere ' — et  Concilii  III.  Plenarii  decreta,  confici  debet.  Cum  vero  agatur  de 
translatione  Rectoris  ab  una  Missione  ad  aliam  aut  ad  aliud  officium  etiam  informs, 
Ordinarii  non  tencntur  ad  canonic!  processus  instructionem ;  opus  cst  autcm  ut  hoc 
fiat  graves  ob  causas,  et  habita  meritorum  ratione  juxta  disposilionem  Concilii 
Plenarii  Baltimorensis  III..  Tit.  II.,  Cap.  V.,  §  32.  Si  in  casu  translation!*  fiat  rc- 
cursus  ad  S.  Congregationem,  S.  Congregatio  remittet  rccursum  ad  Metropolitan!,  vel 
si  agatur  de  Metropolita,  ad  Metropolitan!  viciniorem." 

Rogo  autcm  E.  T.  ut  lianc  Sacraj  Congregationis  resolutioncm  omnibus  Archicpis- 
copis  Statuum  Foederatorum  comnnuiicare  velit. 

Interim  manus  tuas  humillime  doosculor. 
Eminentue  TUJB, 

Humillimus  Addictissimus  Servus  vcrus, 

JOAXXES  CARD.  SIMEOXI,  Pt-wfectus, 
D.  AUCHIEP.  TYREX.,  Seer. 
Emo  ac  Rmo.  Dno  CARD.  JACOBO  GIBBOXS,  Archiepiscopo  Baltimorensi. 


'  Legalization  of  the  Proceedings. — 
(Supra,  n.   236   232,  334,  354,  355,  361.) 

Canonists  unanimously  teach  that  the  leyiiimalio  processus  is  made  either  per  decla- 
rationem  ret,  or  per  testiumrepetitionem.  They  hold  that,  when  the  accused  declines 
to  legalize  the  informative  process  by  his  declaration,  it  will  be  necessary  to 
examine  the  witnesses  over  again,  and  that  either  in  the  presence  or  absence  of 
the  accused.  If  this  repetition  takes  place  in  his  presence,  it  is  called  confrontatio 
personalis ;  if  in  his  absence,  confrontatio  verbalix. 

The  Circular  of  the  S.  C.  EE.  et  RR..  dated  August  1,  1851,  appears  to  leave  it 
optional  with  the  judge  either  to  grant  or  refuse  to  allow  this  repetition  of  the 
witnesses,  even  where  the  accused  declines  to  declare  the  informative  proceedings 
legitimate.  According  to  this  circular,  all  that  seems  necessary,  in  case  the  accused 
refuses  to  make  this  dcclara  ion,  is  to  read  to  him  the  depositions  of  the  witnesses 


Appendix.       >  299 

given  in  the  informative  proceedings,  and  allow  him  to  hand  in  his  cross  questions 
and  objections. 

Here  it  should  be  noted  that  this  mode  of  legalizing  the  informative  process  was 
originally  laid  down  only  for  the  city  of  Rome  and  the  Pontifical  Territory  ;  that  the 
Circular  of  che  S.  C.  EP1  et  RR.  of  August  1,  1850,  wliich,  among  other  regulations, 
prescribes  the  above  form  of  legalization,  was  not  made  obligatory,  outside  of  the 
Poiititical  Territory,  either  by  the  Instruction  of  June  11,  1880,  or  by  the  Instruction 
Cum  Magnopere  of  1834,  except  in  so  far  as  it  relates  to  appeals,  and  therefore  not 
in  so  far  as  it  relates  to  the  legalization  of  the  process. ' 

Hence  it  is  that  even  those  canonists  who  wrote  after  the  date  of  the  circular  of 
August  1,  1851,  teach  that,  when  the  accused  declines  to  declare  the  proceedings 
legitimate,  the  formal  repetition  of  the  witnesses  must  take  place.  For  it  cannot  be 
supposed  that  they  were  all  ignorant  of  this  circular.  They  evidently  considered  it 
as  obligatory  only  in  Rome  and  the  Pontifical  Territory.  They  do  not  agree  with  a 
recent  writer,  who  asserts  the  contrary,  and  that  without  any  proof. 

While,  therefore,  the  form  of  legalization  prescribed  in  the  above  circular  does 
not  appear  to  be  obligatory  with  us,  at  least  until  the  Holy  See  so  declares,  it  may 
nevertheless  be  safely  adopted. 

1  Instr.  June  11, 1S80.  art-  xxxxii.;  Instr.  Cum  Magnopere,  art.  xxxvl. 


ALPHABETICAL   IN'DEX. 


(The  figures  indicate  the  marginal  numbers,  not  the  papes.) 


Accusations,  150. 

Accused,  the  284,  307. 

Ad  perpetuam,  witnesses.  254. 

Advocate,  397   408. 

Advocate,  Roman,  48. 

Admonitions,  50;  Paternal,  69;  legal, 

70,  79. 

Ad  Militantis.  const,  see  appendix  II. 
Allegare  in  Jure  et  in  facto,  416. 
Appeal,  46,  47,  427,  sq.,  442.  490.  sq., 

526,  sq. 

Approval  of  the  advocate.  530. 
Apostoli,  493. 

Assignment  to  a  monastery,  287. 
Attentates,  521  to  525. 
Auditor,    158,    sq. ;    challenge.     150; 

duties,     169,     172  ;     appointment, 

175;  functions.  283,  556. 

B 

Benedict  XIV.,  const,  "ad  Militan- 
tis," 447-477  ;  appendix  II. 

Bishop,  Discretionary  power  to  punish. 
53,  sq. 


c 


Calumnia,  206,  216.  577,  580. 
Capitula,    or    criminal    specifications, 

320,  321. 
Charges,  146,  149,  199. 

Challenges,  16G. 

Civil  Court,  562,  563. 

Citation,  41,  195,  pq. 

Citation  of  the  accused.  284,  293,  304. 

Citation  of  witnesses,  276. 

Close  of  the  trial,  44,  45.  381,  385,  393. 

Complaint  of  Nullity,  566,  sq. 

Compilatio  processus,  44-.  156.  157. 

Commission  of  Investigation,   153, 

177. 

Common  fame,  143. 
Constitution  ad  Militantis,  447,  479, 

480,  appendix  II. 
Consultations,  565. 
Canonical  trial,  17,  sq.,  38.  sq. 
Contumacy,  41 ;  of  tho  accused,  295 

306. 

Contumacy  of  the  witnesses,  281,  sq.    • 
Confrontation,  342,  343. 
Contestatio  delicti,  42,  316-330. 
Conclusio  in  causa,  381,  3SG. 


302 


Alphabetical  Index. 


Contentious  matters,  555. 

Correctional  punishments,  79,  sq. 

Costs  of  the  trial,  580. 

Counts  of  the  charge,  321,  322. 

Crimes,  different  classes  of,  53,  117. 

Cross-examination,  247. 

Cum  Magnopere,  Instr.   its  heading 

31,   sq.;    aim,  20,  sq. ;    extent,    29 

sq. ;  Synopsis,  38. 
Curia  episcopalis,  180,  181. 


D 

Damages,  580. 

Decree  of  the  S   C.  EK.  et  RR.  1835. 

Appendix  VII.;  382,  384.  536. 
Defence,  310,  369,  sq. 
Defamation,  140. 
Delays,  369,  382-384,  536. 
Delicti  contestatio,  318-330. 
Devolutive  effect,  447,  480. 
Discretionary  power  of  Bishop,  53,  sq. 
Dismissal  of  rectors,  581,  sq. 


E 

Ecclesiasticarum       legum      trans- 

gressio,  119. 
England,  oath,  247. 
Ex  informata  conscientia,  82.  84,  85. 

89,  90. 

Ex  Notorio,  102,  sq. 
Explanation,  1-10  ;  Rules  of  1-16. 
Examination  of  the  accused,  307-315. 
Exceptions,  314,  316,  535,  574. 
Extinction  of  the  appeal,  526-531. 
Extrajudicial  appeal,  430,  431,  488. 
Extrajudicial  investigation,  38,  145. 

148,  153,  200. 


F 

Fama  communis,  140. 
False  accusation,  578. 
Final  defence,  416,  sq. 
Final  sentence,  417,  sq. 
Fundamentum  delicti,  199,  202. 

H 

Hearsay  witnesses,  261,  267. 


Imprisonment,  erdcsiaxliml,  287. 

Inferential  witnesses,  267. 

Instruction  "  Cum  Maguopere,"  38.  sq. 
appendix  I. 

Instruction  of  1878,  35,  278. 

Instruction  of  June  11, 1880,  124,  143, 
192. 

Investigation,  extrajudicial,  146;  ju- 
dicial, 205. 

Intimations,  422. 

Inhibitions,  516,  517,  sq. 

Ireland,  oath  in,  247. 


Judge,  investigating  and  deciding,  158, 

176. 

Judge  a  quo,  496. 
Judge  ad  quern,  503,  sq. 
Judex  relator,  556,  558,  559,  560. 
Judicial  appeal,  430. 
Judicial  investigation,  205. 


Leading  questions,  228,  21".  241, 
Legal  proof,  210-214. 
Legalization  of  the  process,  :'">-!. 
Legitimatio  processus,  338,  354. 
Litis  contestatio,  307-317. 


Alphabetical  Index. 


303 


M 

Metropolitan,  503,  532,  sq. 

Milan,   decision   of  the   Holy   See,  in 

MedMan.,  166,  167,  189,   223,  232, 

326,  390,  547. 

Mode  of  hearing  appeals,  538,  sq. 
Monitio,  ad  allegandurn,  395,  410. 


Names  of  witnesses,  335. 

New  York,  Fourth  Prov.  Council,  597  ; 

Synod,  597. 

Notoriety,  97,  98,  100,  102,  110. 
Notary,  182. 
Notices,  195. 
Notifications,  422. 
Nullity  of  proceedings,  190,  566-574. 


o 


Oath  of  witnesses,  243  ;  of  officials  of 
the  curia.  245 ;  of  advocate,  245 ; 
in  England  and  Ireland,  247. 


Personal  Confrontation,  355. 

Plea,  316. 

Positiones,  328. 

Perpetuam     Memoriam,     witnesses. 

254,  260. 
Preventive  Remedies,   38,  50,  52,  59, 

60,  sq. 

Precept,  72,  74,  75,  76,  78. 
Praeceptum,  72,  sq. 
Praecepti  inobservantia,  120. 
Processus  canonicus,  132,  133. 
Privilegium  fori,  562. 
Processus  compilatio,  157. 
Processus    informativus,    40,     154, 

205,  235.  285. 


Procurator  fiscalis,    135,    176,    182, 

185,  198,  sq. 
Procurator  generalis  fisci  at  Rome, 

557,  560. 
Prosecutor,  diocesan,  176,  sq. 

Prosecution,  malicious,  576,  sq. 
Probatio  legalis,  210,  214. 
Probatio  plena,  215. 
Proof,  144,  155,  205,  208,  209,  210. 
Production  of  proofs,  376.  387. 
Procedure  in  appeals,  532,  sq. 
Publicatio  processus,  331,  362,  367. 

381. 
Publication  of  witnesses  names,  344, 

352. 

Punishments,  38,  39,  53. 
Purgatio  canonica,  291. 

K 

Recourse,  575. 

Recursus,  575. 

Reatus  communes,  118. 

Rectors,    483;    dismissal  of,  581    sq. ; 

transfer  693.  sq. 
Removable  rectors,  581,  sq. 
Removal  of  rectors,  483. 
Repetition  of  witnesses,  334,  354,  :;5r., 

361. 
Repressive  punishments,  38, 

80,  sq. 

Respondere  potest,  370. 
Resume  of  the  auditor,  391,  393. 
Restrictus  juris  et  facti,  558. 
Retreat,  59. 
Roman  Advocate,  551. 
Rules  of  interpretation,  1-16. 


s 


Sacred  congregation,  do  Prop.  Fide, 

553. 
Sanctio  canonica,  53  sq. 


Alphabetical  Index. 


Secretary  of  the  curia*  It6>  182. 
Sentence,  46,  417,  422,  sq. 
Spiritual  exercises,  59. 
Specifications  of  the  charge*  322^  323, 

325. 

Spontaneous  witnesses,  216. 
Summary  trial,  19.  127,  sq. ;  12.9, 
Summarium,  385.  sq. 
Summaria  facti  cognitio,  61,  6,2,  201. 
Summing  up,  45»  394,  410-416. 
Suspension  ex  inf.  consc.,  82,  85,.  sqv 
Suspensive  appeals,  481-438, 
Synopsis  of  the  trial,  44,  391-333;. 


Terms  of  trials,  382-384,  53&,  53*. 
Third    Plenary    Council  of  Balti- 
more, 154,  177,  179,  180,  181,  182,. 


Transfers  of  removable  rectors,  593,  sq. 
Trial,  ecclesiastical,  17,  18,  123. 


Verbal  confrontation,  356. 
Vindicatory  punishments,  79,  80  81. 

w 

Warnings,  59. 

Witnesses,  number  217;    laics   219; 

pro  informatione  curue  227:  enemies 
233;    repetition    236;    examination 
238  ;  in  a  distant  part  of  the  diocese 
248 ;  out  of  the  diocese  249. 
Witnesaes  de  relato,  267-271. 


UCS8   LIBRA 


mm 


